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1953d439-ed88-4e5d-98aa-0ea64e340ff9 | DeAngelo v. Schiedler | 306 Or. 91, 757 P.2d 1355 | null | oregon | Oregon Supreme Court | 757 P.2d 1355 (1988)
306 Or. 91
Sondra DeAngelo, Petitioner On Review,
v.
Robert SCHIEDLER, Superintendent, Oregon Women's Correctional Center, Respondent On Review.
CC 86-C-10516; CA A42588; SC S34863.
Supreme Court of Oregon, In Banc.
Argued and Submitted May 4, 1988.
Decided June 21, 1988.
Reconsideration Denied August 30, 1988.
*1356 Wayne Mackeson of Des Connall and Dan Lorenz, P.C., Portland, argued the cause and filed the petition for petitioner on review.
Brenda J. Peterson, Asst. Atty. Gen., Salem, argued the cause for respondent on review. With her on the response to the petition were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.
JONES, Judge.
This is a post-conviction appeal. We review the judgment of the post-conviction court for the constitutionality of the sentence. ORS 138.530(1)(c).
Petitioner pled no contest to three counts of theft in the first degree and three counts of forgery in the first degree. All of the charges arose from her misappropriation of money, in various forms, from an elderly woman for whom she acted as companion. Petitioner was found guilty and sentenced to five years on each count. The sentences for the forgery counts were to run concurrently with those for the theft counts, but the sentences for the theft counts were to run consecutively. Petitioner sought post-conviction relief on several grounds, particularly that she was not given an adequate opportunity to be heard on her own behalf at the time of sentencing. The post-conviction court found that petitioner had not been denied that right. The Court of Appeals affirmed without opinion. DeAngelo v. Schiedler, 89 Or. App. 87, 747 P.2d 415 (1987). We reverse the decision of the Court of Appeals.
Petitioner's sole complaint to this court is that her right of allocution[1] was denied by the trial court. She claims *1357 that the right of allocution is of constitutional magnitude, asserting that right under both the state and federal constitutions.
Article I, section 11, of the Oregon Constitution states that "[i]n all criminal prosecutions, the accused shall have the right * * * to be heard by himself and counsel." In construing this provision, this court in State ex rel. Russell v. Jones, 293 Or. 312, 315, 647 P.2d 904 (1982), stated that "[t]he term `criminal prosecution' includes sentencing, a stage at which a judicial decision affecting a defendant's future liberty is made. Obviously, then, a defendant is entitled `to be heard by himself and counsel' at sentencing."
There appears to be no disagreement that a "criminal prosecution" for the purposes of Article I, section 11, includes an ordinary sentencing hearing. See State ex rel. Russell v. Jones, supra, 293 Or. at 331, 647 P.2d 904 (Peterson, J., dissenting on other grounds); cf. Perry v. Williard, 247 Or. 145, 147, 427 P.2d 1020 (1967); Gebhart v. Gladden, 243 Or. 145, 149, 412 P.2d 29 (1966) (without mentioning Article I, section 11, stating that sentencing proceedings are part of the criminal prosecution). Once that has been established, it requires almost no interpretive work on our part to decide that defendant has the right, not only procedural, but constitutional, to be heard at sentencing, since the Oregon Constitution unambiguously grants the accused the right to be heard during the entire criminal prosecution.
We are not alone in concluding that the "right to be heard" under a state constitution includes the right of allocution. The Rhode Island Supreme Court in Robalewski v. Superior Court, 97 R.I. 357, 197 A.2d 751, 753 (1964), held that the language of Article I, section 10, of the Constitution of Rhode Island that a defendant in a criminal prosecution has the "liberty to speak for himself" included the common-law right of allocution. The Rhode Island court recognized that this guarantee did not originate with the state's constitution but stemmed from long-settled common-law rights of criminal defendants. In Robalewski the court held that one of the "precious fruits" of the right of an accused to be at "liberty to speak for himself" was the ancient common-law right of allocution. Ibid. The Rhode Island court did not cite any potential federal constitution violation, nor do we.
Because the Oregon Constitution affords defendant a right to speak at sentencing, the claim under the United States Constitution disappears. As explained by Justice Lent in State ex rel. Russell v. Jones,
The only remaining issue, therefore, is whether defendant was able effectively to exercise her right to be heard or if instead the sentencing judge violated that right by cutting her statement off in midsentence. The right to be heard is not unlimited. Even at trial, if the defendant decides to speak on her own behalf, the evidence introduced through that testimony is subject to the ordinary requirements that it not be irrelevant.
The right to speak at a sentencing hearing should logically include the right to make any statements relevant to existing *1358 sentencing and parole practices. For instance, Oregon's current "modified just deserts" approach to incarcerating individuals requires the sentencing judge to be fully informed of the defendant's criminal history, the crime severity, and aggravating and mitigating matters before imposing sentence. See, e.g., ORS 137.077, 137.080, 144.185. Many courts addressing the right of a defendant to speak at sentencing recognize that a prime reason for allowing such a right is to provide the defendant an opportunity to plead for mitigation of the sentence. See, e.g., Green v. United States, 365 U.S. 301, 304, 81 S. Ct. 653, 655, 5 L. Ed. 2d 670 (1961); State v. Allie, 147 Ariz. 320, 710 P.2d 430 (1985); People ex rel. McKevitt v. District Court, 167 Colo. 221, 447 P.2d 205 (1968); State v. Webb, 242 Kan. 519, 748 P.2d 875 (1988). We agree with the Arizona court in State v. Allie that a defendant should be able to state any reason why he or she feels sentence should not be pronounced and, in addition to presenting mitigating evidence, be given an opportunity to make any relevant personal comments to the court. This includes, but is not limited to, statements of remorse, apology, chagrin, or plans and hopes for the future. Some defendants might even wish to plead for maximum punishment in an attempt to achieve some purported good.[2]
Turning to the present case, after defense counsel's statement to the court on behalf of petitioner, the court asked petitioner if she had anything to say before the court pronounced sentence. The following colloquy took place:
We cannot tell from this record what petitioner would have said to the court, although we deduce that no matter what she had said the sentencing judge would have remained unpersuaded. The judge should not impatiently have jumped to judgment, especially a judgment that potentially would lock up petitioner for seven and one-half years in maximum security for committing a nonviolent property crime. There is no indication that the judge was interrupting her statement because he found it irrelevant rather it appears he stopped her because he was annoyed and disgusted.
In hindsight, petitioner should have attempted to make an "offer of proof" of what she was going to say to the court. The judge, however, cut off all further communication. He said in no uncertain terms, "I don't want to listen to you anymore." If she had attempted to say more, she might have been held in contempt by the obviously impatient judge.[3] Under these circumstances, petitioner can be excused for not making a more complete record. Petitioner was allowed only nine and one-half sentences to speak on her own behalf. Perhaps what she would have expressed would not have impressed the sentencing judge, but it might have influenced a parole board considering her sentence. Perhaps her words would have contained information vital with regard to a Parole Board decision to override the minimum sentences, ORS 144.110(2)(a), or when considering aggravating or mitigating circumstances, ORS 144.120(2).
We note the sentencing standards published by the American Bar Association.[4]*1360 ORS 137.122[5] was not in effect when the trial judge imposed consecutive sentences *1361 without a word of explanation or reasoning. On remand, the sentencing court will have the opportunity to consider those standards and to apply the current statute, as we hold that the sentencing judge violated petitioner's state constitutional right to be heard when he summarily stopped her from saying anything further at her sentencing hearing.
The decision of the Court of Appeals is reversed. The judgment of the post-conviction court is reversed, and the case is remanded to that court for further proceedings.[6]
[1] In this context, "allocution" refers to a convicted defendant's opportunity to speak before sentencing, although historically the "allocution" referred specifically to the judge's solemn question to the prisoner at the bar whether the prisoner knew any reason why judgment should not be pronounced upon her. A commentator discussed it as follows:
"Allocution, sometimes called `the allocutus' is of such ancientness that it is difficult, if not impossible, to discover its historical origin. In philology, as in law, allocution is an address, especially a formal, hortatory, authoritative address. * * *
"* * *
"Chitty in the chapter `Of the Judgment, and its Incidents' had this to say, (and it has been most frequently quoted and referred to):
`It is now indispensably necessary, even in clergyable felonies, that the defendant should be asked by the clerk if he has any thing to say why judgment of death should not be pronounced on him; and it is material that this appear upon the record to have been done; and its omission, after judgment in high treason, will be a sufficient ground for the reversal of the attainder. On this occasion, he may allege any ground in arrest of judgment; or may plead a pardon, if he has obtained one * * *. If he has nothing to urge in bar, he frequently addresses the court in mitigation of his conduct, and desires their intercession with the king or casts himself upon their mercy. After this nothing more is done, but the proper judge pronounces the sentence.'"
Barrett, Allocution, 9 Mo.L.Rev. 115, 115, 117-18 (1944) (quoting 1 Chitty Cr.L. § 700) (emphasis omitted).
[2] Without suggesting that a convicted criminal in Oregon would speak so eloquently, Mohandas Gandhi's "Plea for the Severest Penalty, Upon His Conviction for Sedition," illustrates the reasons for allocution. Upon being asked after his conviction whether he wished to make a statement before receiving his sentence, Gandhi said (in part):
"I believe that I have rendered a service to India and England by showing in non-co-operation the way out of the unnatural state in which both are living. In my humble opinion, non-co-operation with evil is as much a duty as is co-operation with good. But in the past, non-co-operation has been deliberately expressed in violence to the evildoer. I am endeavoring to show to my countrymen that violent non-co-operation only multiplies evil and that as evil can only be sustained by violence, withdrawal of support of evil requires complete abstention from violence. Nonviolence implies voluntary submission to the penalty for non-co-operation with evil. I am here, therefore, to invite and submit cheerfully to the highest penalty that can be inflicted upon me for what in law is a deliberate crime and what appears to me to be the highest duty of a citizen. The only course open to you, the judge, is either to resign your post, and thus dissociate yourself from evil if you feel that the law you are called upon to administer is an evil and that in reality I am innocent, or to inflict on me the severest penalty if you believe that the system and the law you are assisting to administer are good for the people of this country and that my activity is therefore injurious to the public weal."
The author reported the reaction of the judge to this speech as follows:
"Passing sentence on Gandhi, his judge confessed, presented a problem of the utmost difficulty. Though Gandhi was evidently of a noble and even saintly character, quite different `from any person I have ever tried or am likely to have to try,' it was his painful task, since the law is no respecter of persons, to consider him solely in the character of a criminal."
Reprinted in The Law as Literature 459, 465-66 (London ed. 1960). Obviously this statement had the effect of a plea in mitigation. Furthermore, Gandhi had an opportunity to explain why he felt he had done nothing wrong. In most cases, and especially in the very common situation in which a defendant makes a plea of guilty, there is no other opportunity besides speaking before sentence for a defendant to express, in his or her own "halting eloquence," what sentence should be imposed and why.
[3] The reader should note that the post-conviction judge whose name appears on the title page was not the sentencing judge.
[4] See e.g., ABA Standards for Criminal Sentencing 18-6.4, 18-6.6 (2d ed 1980), which provide in part: Standard 18-6.4:
"(a) As soon as practicable after the determination of guilt and the examination of any presentence reports * * * a proceeding should be held at which the sentencing court should:
* * * * * *
(ii) hear argument on the applicability of the various sentencing alternatives to the facts of the case;
(iii) afford to the defendant his or her right of allocution * * *."
The commentary to this standard notes:
"Subparagraph (a)(ii) recognizes that the court should permit both parties to address the desirability of various sentencing alternatives (a position taken in standard 18-6.3(c) and (f)(iv)). Subparagraph (a)(iii) then requires that the court separately permit the defendant an opportunity to exercise the common law right of allocution."
Standard 18-6.6:
"(a) In addition to reaching the conclusions required as a prerequisite to imposition of the sentence selected, when sentence is imposed the court:
* * * * * *
(ii) normally should state for the record in the presence of the defendant the reasons for selecting the particular sentence to be imposed. In the exceptional cases where the court deems it in the best interest of the defendant not to state fully in the defendant's presence the reasons for the sentence, the Court should prepare such a statement for inclusion in the record."
[5] ORS 137.122, passed in 1985, disallows the imposition of consecutive sentences unless certain specific findings are made. It reads as follows:
"(1) A term of imprisonment imposed by the court may be made concurrent or consecutive to any other term of imprisonment which has been previously imposed or is simultaneously imposed upon the same defendant. The court may provide for consecutive terms of imprisonment only in accordance with the provisions of this section. A term of imprisonment shall be deemed to be a concurrent term unless the court's order expressly provides for consecutive terms of imprisonment.
"(2) If a defendant is simultaneously sentenced for criminal offenses that do not arise from the same continuous and uninterrupted course of conduct, or if the defendant previously was sentenced by any other court within the United States to a term of imprisonment which the defendant has not yet completed, the court may impose a term of imprisonment concurrent with or consecutive to the other sentence or sentences.
"(3) When a defendant has been found guilty of more than one criminal offense arising out of a continuous and uninterrupted course of conduct, the sentences imposed for each resulting conviction shall be concurrent unless the court complies with the procedures set forth in subsection (4) of this section.
"(4) The court has discretion to impose consecutive terms of imprisonment for separate convictions arising out of a continuous and uninterrupted course of conduct only if the court finds:
(a) The criminal offense for which a consecutive sentence is contemplated was not merely an incidental violation of a separate statutory provision in the course of the commission of a more serious crime; or
(b) The criminal offense for which a consecutive sentence is contemplated caused or created a substantial risk of causing greater or qualitatively different loss, injury or harm to the victim or caused or created a substantial risk of causing loss, injury or harm to a different victim than was caused or threatened by the other offense or offenses committed during a continuous and uninterrupted course of conduct.
"(5) When the court makes the findings provided in paragraph (a) or (b) of subsection (4) of this section, it may, in its discretion, impose a consecutive sentence for each criminal conviction arising out of a continuous and uninterrupted course of conduct for which such a finding has been made. The court may impose a consecutive sentence if the court finds that the actual term of incarceration would not otherwise be commensurate with the seriousness of the total course of defendant's criminal conduct or the public would not be adequately protected if a concurrent term of imprisonment were imposed.
"(6) Whenever the court imposes a consecutive sentence under this section, it shall state its reasons for doing so and make all required special findings on the record at the time of sentencing."
ORS 137.123 originally was adopted as Ballot Measure No. 10 in November 1986, with instructions that it be "added to and made a part of ORS [Chapter] 137." Or Laws 1987, ch. 2, § 12. It has nearly identical language, which disallows the issuance of consecutive sentences unless similar findings are made:
"(1) A sentence imposed by the court may be made concurrent or consecutive to any other sentence which has been previously imposed or is simultaneously imposed upon the same defendant. The court may provide for consecutive sentences only in accordance with the provisions of this section. A sentence shall be deemed to be a concurrent term unless the court's order expressly provides for consecutive sentences.
"(2) If a defendant is simultaneously sentenced for criminal offenses that do not arise from the same continuous and uninterrupted course of conduct, or if the defendant previously was sentenced by any other court within the United States to a sentence which the defendant has not yet completed, the court may impose a sentence concurrent with or consecutive to the other sentence or sentences.
"(3) When a defendant has been found guilty of more than one criminal offense arising out of a continuous and uninterrupted course of conduct, the sentences imposed for each resulting conviction shall be concurrent unless the court complies with the procedures set forth in subsection (4).
"(4) The court has discretion to impose consecutive terms of imprisonment for separate convictions arising out of a continuous and uninterrupted course of conduct only if the court finds:
(a) That the criminal offense for which a consecutive sentence is contemplated was not merely an incidental violation of a separate statutory provision in the course of the commission of a more serious crime but rather was an indication of defendant's willingness to commit more than one criminal offense; or
(b) The criminal offense for which a consecutive sentence is contemplated caused or created a risk of causing greater or qualitatively different loss, injury or harm to the victim or caused or created a risk of causing loss, injury, or harm to a different victim than was caused or threatened by the other offense or offenses committed during a continuous and uninterrupted course or [sic] conduct."
Both statutes inform a sentencer that the court "may provide for consecutive [terms of imprisonment, ORS 137.122(1)] [sentences, ORS 137.123(1)] only in accordance with the terms of this section." (Emphasis added.)
Neither statute was in effect on March 26, 1985, the date that petitioner originally was sentenced, so the sentencing court did not violate any statute by failing to make the required findings. Nonetheless, if on resentencing the court desires to impose consecutive sentences, it must follow the 1987 statute. Because the 1987 statute's requirement that consecutive sentences be imposed only in accordance with "this section" is clearly inconsistent with the 1985 statute's identical requirement, it must be taken impliedly to repeal the requirements of the 1985 statute. State v. Shumway, 291 Or. 153, 630 P.2d 796 (1981).
[6] ORS 138.520 gives a post-conviction court the authority to grant relief, including "modification of sentence." | ea724b3a512a875b12cd8f06fcbe444df705ffda15c3ac86a45890bf7baa5c60 | 1988-06-21T00:00:00Z |
422f8781-18ac-4fdc-bb83-cc67b6f24eb2 | State v. Lefthandbull | 306 Or. 330, 758 P.2d 343 | null | oregon | Oregon Supreme Court | 758 P.2d 343 (1988)
306 Or. 330
STATE of Oregon, Respondent On Review,
v.
Paul Lawrence LEFTHANDBULL, Petitioner On Review.
TC 10-87-01059; CA A44271; SC S35005.
Supreme Court of Oregon, In Banc.
Argued and Submitted June 7, 1988.
Decided August 2, 1988.
Ingrid A. MacFarlane, Deputy Public Defender, Salem, argued the cause for petitioner on review. With her on the petition was Gary D. Babcock, Public Defender, Salem.
Brenda Peterson, Asst. Atty. Gen., Salem, argued the cause for respondent on review.
LINDE, Justice.
After pleading guilty to an attempt to manufacture a controlled substance, ORS 475.992(1)(b), defendant was ordered to pay restitution totaling $6,544.46 to the owner of a house in which methamphetamine was made and to an insurance company, and $50 to a victim's assistance fund. He appealed that part of the sentence ordering restitution for damage to the house on grounds that the acts of which he was convicted did not cause the damage. The Court of Appeals affirmed the sentence without opinion, 89 Or. App. 570, 749 P.2d 1237. We reverse the judgment and remand the case to the circuit court for resentencing.
ORS 137.106(1) authorizes a sentence to include an order of restitution to victims when a defendant "is convicted of criminal activities which have resulted in pecuniary damages." ORS 137.103(1) defines "criminal activities" to include "any offense with respect to which the defendant is convicted or any other criminal conduct admitted by the defendant." The restitution ordered in this case therefore depends on a showing that the pecuniary harm to the owners of the house resulted from defendant's attempt to manufacture methamphetamine or from other criminal conduct that he may have admitted.
The house in question was rented to and occupied by Sarah Henry, not by defendant. Henry admitted to manufacturing methamphetamine in the house. The pecuniary harm to the lessor and to the insurance company resulted from the manufacturing process. If defendant participated in that process, he might have been convicted of unlawfully manufacturing a controlled substance,[1] but although he was *344 indicted on that charge, he was convicted only of an attempt. A bungled attempt to commit a crime, of course, can cause real harm, sometimes more than successful commission of the crime would have caused, but a person convicted of an attempt cannot be charged restitution as if he had been convicted of the completed crime unless the acts he admits or is proved to have committed caused the damage. Cf. State v. Eastman/Kovach, 292 Or. 184, 189-90, 637 P.2d 609 (1981) (conviction of unlawfully leaving the scene of an accident does not support restitution for damages resulting from the accident).
Because defendant pleaded guilty to the attempt, in this case no particular acts were proved at a trial. Nor did he admit any specific acts at the plea proceeding or the sentencing hearing. The record of the plea proceeding is brief. The trial judge asked defendant whether he understood that the charge carried a potential maximum sentence of five years in the penitentiary and a $100,000 fine. The judge did not mention restitution. The judge also asked the defendant whether he understood that by pleading guilty, he would give up his constitutional trial rights. The defendant answered that he understood, and he pleaded guilty. The judge then asked: "And is it true that, on or about the 21st of December, 1986, in Lane County, that you knowingly attempted to manufacture the controlled substance methamphetamine?" Defendant answered: "Yes, I did." There were no further questions.
The sentencing hearing focused on the issue of restitution. The owner of the house testified to extensive damage done by the methamphetamine operations in the house and the financial losses caused thereby. Defendant testified briefly to his limited employment history. Counsel referred to the presentence investigation report, but defendant was not asked about its contents.
The presentence report summarized the events that led to defendant's arrest and subsequent conviction. A neighbor called the Eugene Police Department to report a man crawling into the house through a window. When the officers arrived, they heard a crash and observed a hand on the edge of an open door. When they knocked on the door, it was pushed closed, but the officers gained entry. Sarah Henry and another woman were in the residence with defendant. Defendant claimed to be at the house to fix the door and to know nothing about methamphetamine. Henry backed up his denials. Defendant was arrested on warrants outstanding against him, and packets of methamphetamine subsequently were found in his clothing. His finger-prints were found on Pyrex dishes and other equipment that was used in making methamphetamine.
As already stated, no questions about what defendant actually did were asked or answered either at the plea proceeding or at the sentencing hearing. At the end of the sentencing hearing, the trial judge explained why he decided that defendant should be incarcerated rather than placed on probation. On the question of restitution, the judge clearly held defendant responsible for the effects of the completed crime, the actual manufacture of methamphetamine. The judge said:
Defendant, however, was not convicted of "the manufacture of methamphetamines." The record does not show what acts of defendant's constituted the attempt to which he pleaded guilty or how his acts "resulted in pecuniary damages," as the restitution statute requires. The prosecutor or the court should have placed on record any evidence relied on to show that acts of defendant caused harm to the house, so that defendant might have the opportunity to contest the causation issue. Cf. State v. Tuma, 292 Or. 194, 637 P.2d 614 (1981) (resentencing required where evidence is lacking on an element of restitution).
Accordingly, the decision of the Court of Appeals and the judgment of the circuit court are reversed, and the case is remanded to the circuit court for resentencing after such further hearing as the court deems necessary.
[1] ORS 161.155 provides:
"A person is criminally liable for the conduct of another person constituting a crime if:
"* * *
"(2) With the intent to promote or facilitate the commission of the crime the person:
"* * *
"(b) Aids or abets or agrees or attempts to aid or abet such other person in planning or committing the crime * * *." | 86208ad52a17d47c710fa272c2ed7d0e84e99c63aacb5e0a54a24f6accd1e243 | 1988-08-02T00:00:00Z |
9b3cb980-51a0-4242-bbcd-7f19697ec589 | Meredith v. Meredith | 203 Or. 45, 276 P.2d 387 | null | oregon | Oregon Supreme Court | Reversed November 10, 1954.
Petition for rehearing denied December 22, 1954.
Charles R. Cater, of La Grande, argued the cause and filed a brief for appellant.
*46 C. Richard Neely, argued the cause for respondent. On the brief were Helm & Neely, of La Grande.
Before LATOURETTE, Chief Justice, and WARNER, LUSK, BRAND, TOOZE and PERRY, Justices.
REVERSED.
PER CURIAM.
This is an appeal by the defendant Caroline Frances Meredith from an order modifying a decree of divorce (as modified) respecting the custody of a minor child.
Michael Meredith, son of plaintiff and defendant, is four years of age. His parents were divorced by decree entered February 9, 1952. By stipulation of the parties, the decree awarded temporary custody of Michael to his paternal grandparents. On March 27, 1953, the decree was modified by awarding custody of Michael to his mother, the defendant. On January 16, 1954, plaintiff moved the court for an order modifying the decree by awarding sole custody of Michael to him. The motion was based upon a number of affidavits. Counteraffidavits were filed by defendant. The matter came on for hearing before the court on February 15, 1954. In addition to the affidavits and counteraffidavits filed as aforesaid, the court considered oral testimony offered at the time of trial. On February 23, 1954, the court entered an order modifying the decree (as theretofore modified) by awarding custody of Michael to his paternal grandparents, Mr. and Mrs. Ray Meredith. The defendant appeals.
1. We have carefully considered the affidavits and counteraffidavits filed in the case, together with the oral testimony produced at the time of trial. A consideration of the child's future welfare and happiness restrains us from detailing the charges and countercharges made by the parties to this litigation. No good *47 purpose whatever would be served in making public and permanent this bizarre record. It is enough to say that the greater portion of the showing made by plaintiff in support of his motion to modify the decree related to matters that occurred, if they occurred at all, prior to the modification of the decree dated March 27, 1953, and even to matters occurring prior to the original divorce decree. We have repeatedly held that a decree respecting the care and custody of a minor child is res judicata as to what is for its best interests at the time of such decree, and that an award of custody will not be disturbed unless there is a subsequent change in circumstances and conditions warranting a modification. Goldson v. Goldson, 192 Or 611, 617, 236 P2d 314.
2. Moreover, the affidavits filed by plaintiff are rife with hearsay, unjust and unjustifiable innuendoes, and baseless conclusions. We are satisfied from the record that the defendant mother loves her child, and that during the comparatively short time the child was in her actual care and custody, she bestowed upon it a true mother's affection and care. We are particularly impressed by the statements made in her favor by the wholly disinterested sheriff and deputy sheriff of Union county. We also are convinced that whatever nervousness the child may have exhibited was caused entirely by the lack of stability as to its custody. No child of the age of this one can withstand the strain incident to being changed constantly from one environment to another. In such circumstances, the child naturally feels insecure. That must be put to an end. We are of the opinion that the best interests of this child of tender years demand that its custody be continued in the mother. Hixson v. Hixson, 199 Or 559, 569, 263 P2d 597; Pick v. Pick, 197 Or 74, 251 P2d 472; Goldson v. Goldson, supra; Sakraida v. Sakraida, 192 *48 Or 217, 233 P2d 762; Ruch v. Ruch, 183 Or 240, 192 P2d 272.
3. The record before us induces the suggestion that when affidavits containing serious charges of misconduct against a party are filed with a motion to modify a decree respecting the custody of minor children, they should be considered primarily as the basis for an order to show cause; and although they may be considered at the final hearing upon the merits, nevertheless, the weight to be given them should be tempered by the fact that there has been an entire absence of cross-examination, the most valuable weapon yet devised for eliciting the truth. They should also be viewed in terms of the admissibility of the subject matter thereof if they had been tendered at the time of trial. It is in this light that this court, in trying the case de novo, considers them.
The order of the trial court from which this appeal is taken is reversed. | 4463f0cca1d509b44b91da5a5fe9a75751dafa872cfc7924693b48a73b3584fb | 1954-11-10T00:00:00Z |
820d7c1f-24d3-42f6-83f5-0cf05ba263ec | Eldon v. Chandler | 202 Or. 407, 275 P.2d 748 | null | oregon | Oregon Supreme Court | Affirmed as modified October 20, 1954.
John J. Kelley, Portland, argued the cause and filed a brief for appellants.
Ralph Wyckoff, Assistant Attorney General, Salem, argued the cause for respondents. With him on the brief were Robert Y. Thornton, Attorney General, and C.W. Enfield, Assistant Attorney General, Salem.
*408 Before LATOURETTE, Chief Justice, and ROSSMAN, TOOZE and PERRY, Justices.
AFFIRMED AS MODIFIED.
PER CURIAM.
Plaintiffs on March 17, 1948, entered into a contract with defendants for the reconstruction of a highway in Douglas county. The contract was fully performed and completed and accepted by defendants on September 30, 1949. On January 27, 1950, defendants made a final estimate of $14,971.54 due and owing plaintiffs. Plaintiffs filed exceptions to such estimate whereupon another final estimate was made by defendants on January 26, 1951, in the sum of $16,949.98. Exceptions were again made to the estimate and upon refusal of defendants to further amend, the present suit was instituted to compel the defendants to amend and correct said final estimate by allowing them $18,680.61, which sum the court awarded plaintiffs at the trial.
Plaintiffs appeal claiming that they are entitled to interest on the sum awarded. Defendants cross-appeal urging error on the part of the court in increasing the award over and above the final estimate.
1. That interest is allowable in a case of this character is settled in North Pacific Construction Co. v. Wallowa County, 119 Or 565, 572, 249 P 1100, where the precise question being considered was definitely settled. It is urged that no authorities were cited in that case with reference to the allowance of interest and that since earlier Oregon cases held adversely the case is not authority for the rule. The case of Public Market Co. v. Portland, 171 Or 522, 621, 130 P2d 624, 138 P2d 916, not discussed by defendants, forecloses the subject since there the matter of interest was again before us and we held that interest was recoverable, citing with *409 approval the North Pacific Construction Company case, supra.
2. On the cross-appeal defendants urge that the court erred in increasing the award over and above the final estimate made by the engineer. Defendants are in no position to raise this question since, at the conclusion of the trial, they submitted to the trial court findings and conclusions which comported with those of the court and its consequent judgment. Schoren v. Schoren, 110 Or 272, 288, 214 P 885, 222 P 1096.
Affirmed as modified. | 308c6ea3877a6cca3b4975dd3ed8c26db6c38ea6967fedf42ac95c6526cee2c7 | 1954-10-20T00:00:00Z |
503ef2ec-1ad0-4287-a288-1f04672aeab8 | Bailey v. Rhodes, Adm. | 202 Or. 511, 276 P.2d 713 | null | oregon | Oregon Supreme Court | Reversed and remanded November 17, 1954.
*513 Sam Van Vactor argued the cause for appellant. On the brief were Brown & Van Vactor, of The Dalles.
R.W. Nahstoll argued the cause for respondent. On the brief were Eben & Nahstoll, of Portland, and Donald E. Heisler, of The Dalles.
Before LATOURETTE, Chief Justice, and WARNER, LUSK, BRAND, TOOZE and PERRY, Justices.
REVERSED AND REMANDED.
TOOZE, J.
This is a damage action for personal injuries, brought pursuant to the provision of § 115-1001, OCLA (ORS 30.110), generally known as "the guest statute". It was commenced by Jack E. Bailey, as plaintiff against Ernest H. Rhodes, administrator of the estate of James A. Triplett, deceased, as defendant. The trial resulted in a verdict and judgment in favor of plaintiff in the sum of $15,000; defendant appeals.
This action is brought against the personal representative of James A. Triplett, deceased, the alleged wrongdoer, as authorized by the provisions of § 8-904, OCLA, as amended by ch 519, Oregon Laws 1949. That statute provides that damages recoverable thereunder shall not exceed the sum of $15,000.
*514 State highway 197, known as "The Dalles-California Highway", runs in a general northerly and southerly direction between Maupin and The Dalles, in Wasco county, Oregon. The highway at the point with which we are concerned has blacktop pavement 20 feet in width and a 20° left-hand curve (traveling north). On the outside of the curve there is a gravel shoulder 8 feet wide, and on the inside a ditch 2 feet in width. The accident out of which this litigation arose occurred on said highway near milepost 37, about a mile from Tygh Valley, in Wasco county. All the way from Maupin northerly to the scene of the accident the highway is crooked, with one curve after another, and is largely downgrade. All approaches to curves are marked by standard state highway curve-warning signs, including the curve where the accident took place. Also, at intervals along the highway embankment at this curve, were set concrete posts, 8 inches square, 5 1/2 feet high, and painted white. The embankment below the curve in the highway is steep, for a distance of 30 feet being on a 65% grade; and from there on down for approximately 130 to 140 feet, on a 39% grade, and then on a 10% grade to where the land levels off.
On September 21, 1951, at about the hour of 11:30 p.m., plaintiff was riding as a guest in a Ford automobile owned and then and there being operated by James A. Triplett, now deceased. The car was proceeding in a northerly direction along said highway, enroute from Maupin to Tygh Valley. At the curve in the highway above mentioned, the automobile left the highway, knocking over one of the concrete white posts and plunging down and along the embankment for a distance of more than 500 feet, coming to rest standing on its four wheels, but almost completely demolished. Parts of the wrecked car and its contents were found *515 strewn along the path it traveled after leaving the highway. The body of James A. Triplett was found about 50 feet from the automobile. Triplett was dead. Plaintiff was found about 25 feet from the car, but was alive, though seriously injured. Plaintiff was unconscious and did not regain consciousness for a month thereafter. The wreck was discovered about 8:00 o'clock a.m. on September 22. There were no eyewitnesses to the accident. Plaintiff had no memory of the incidents immediately preceding the cash.
In his complaint plaintiff charged the decedent, James A. Triplett, with intoxication and gross negligence. Paragraph VI of the complaint reads as follows:
*516 Defendant denied the charge of intoxication and the several acts of negligence specified in plaintiff's complaint, and by the affirmative allegations of his answer charged plaintiff with contributory negligence as follows:
In his second affirmative defense, defendant alleged as follows:
By his reply plaintiff denied all the new matter alleged in defendant's answer.
Section 115-1001, OCLA (ORS 30.110), provides:
The evidence in this case is undisputed that at the time of the accident plaintiff was riding in the Ford automobile as the guest of James A. Triplett, now deceased, within the meaning of the foregoing statute.
Prior to the accident both plaintiff and Triplett were employed by the firm of Dant & Russell, and were working at Dant, Oregon, about 13 miles from the town of Maupin. On the evening of September 21, 1951, after plaintiff and Triplett had finished their day's work, both left in Triplett's car for Maupin, where they arrived about 7:30 p.m. The parties first stopped at Elliott's Oasis, a tavern and auto court in Maupin. Plaintiff remained in the car for about half an hour while Triplett visited someone in one of the Oasis cabins. Upon Triplett's return to the car, both parties went into the tavern where each drank one or two bottles of beer during the period of the 30 to 45 minutes they remained therein. From the tavern, they drove to the Shell service station in Maupin, and were there about an hour. Triplett returned a borrowed tire. Plaintiff remained in the car while at the service station. The parties then visited the Rainbow cafe in Maupin. Bailey had a cup of coffee there, and Triplett left temporarily to get a bottle of whiskey. Upon Triplett's return, both Triplett and plaintiff drank three or four glasses of beer apiece, and there is some evidence to the effect that out of plaintiff's presence, Triplett drank some whiskey. However, the bartender at the *518 Rainbow cafe testified that neither plaintiff nor Triplett appeared to be intoxicated. Plaintiff left the Rainbow cafe and returned to the car, while Triplett remained in the cafe for an additional 15 or 20 minutes. Upon his return to the car, Triplett told plaintiff he had been drinking whiskey with some friends. They then went to the Riverside hotel. There Bailey had one 7-Up highball, and Triplett, two or three coke highballs. The bartender refused to serve plaintiff a second highball, because at the time he appeared to have "had enough". Bailey then went back to the car, Triplett remaining in the hotel bar. To the bartender at the Riverside, Triplett did not appear to be intoxicated, and plaintiff testified that at no time during the evening prior to the accident did Triplett appear to him to be intoxicated. From the Riverside hotel, the men started on the trip to Tygh Valley. Plaintiff recalled only the first two or three miles of that trip, which ended so disasterously.
1. There was ample evidence in the record from which the jury might find that Triplett was intoxicated. Moreover, the question of whether plaintiff knew, or by the exercise of due care on his part should and would have known, that Triplett was intoxicated when he entered and remained in the car on the trip toward Tygh Valley, was, under all the facts and circumstances of this case, a jury question.
2, 3. It is well established in this state that if a guest voluntarily rides in an automobile driven by one who he knows, or in the exercise of due care should know, is so intoxicated as to incapacitate him from safely and prudently driving it and under such condition proximately causes the accident, he is himself guilty of contributory negligence which will preclude his recovery of damages for any injuries he might sustain. *519 Petersen v. Abrams and Leatham, 188 Or 518, 523, 216 P2d 664; Willoughby v. Driscoll, 168 Or 187, 120 P2d 768, 121 P2d 917. In Petersen v. Abrams and Leatham, supra, we said:
4. The intoxication of the guest himself, if he is intoxicated, is no excuse for a failure on his part, if there is such failure, to exercise that degree of care for his own safety that would have been exercised by a reasonably prudent person in like or similar circumstances, within the meaning of the rules above stated. See generally: Adair, Adm'x. v. Valley Flying Service, 196 Or 479, 250 P2d 104.
The term "intoxication", as used in the guest statute, is defined in Glascock v. Anderson, 198 Or 499, 507, 257 P2d 617.
5. Under the evidence in this case the trial court properly overruled defendant's motion for an involuntary nonsuit, and also defendant's motion for a directed verdict in his favor. There was substantial evidence from which the jury might, and evidently did, find that Triplett was intoxicated, and that he was also guilty of gross negligence in the respects alleged in the complaint. Plaintiff's alleged contributory negligence was also one of fact for jury determination.
However, the defendant assigns as error the admission of certain testimony by a state police officer.
At about 8:00 o'clock a.m., on September 22, 1951, Charles A. U'Ren, a sergeant of the Oregon state police, and stationed at The Dalles, received a call at his office *520 reporting the accident. He immediately proceeded to the scene of the accident, arriving there about 9:00 a.m. He made an investigation of the physical facts. As a witness, he described the curve in the highway, the shoulder and steep embankment, and from the marks made by the progress of the car from the highway to where it came to rest, pointed out where it left the highway and how it had gone over the embankment and rolled down the hillside for a distance of 556 feet; he described the debris and parts of the automobile found strewn along the path followed by the car; he told about the white cement post having been knocked over the bank, leaving a hole in the earth on the shoulder where it had been standing; he testified that there were no marks on the pavement, but that there was a mark on the shoulder where the car had gone off the road; he also identified photographs of the wrecked automobile, which photographs were admitted as evidence. His description of the physical facts was quite complete. Other witnesses testified to the same conditions. Thereupon, and as a part of his direct examination, the officer testified as follows:
Later in the trial the following proceedings occurred:
*523 6, 7. The admission of this testimony constituted error, and, in our opinion, it was prejudicial error. The matter of speed of the automobile did not relate solely to specification (a) of paragraph VI of plaintiff's complaint, supra. For example, it was material to a consideration of the question of the alleged intoxication of Triplett: Glascock v. Anderson, supra; Walker v. Penner, 190 Or 542, 552, 227 P2d 316. In fact, the question of speed might be considerd in connection with the other specific allegations of negligence quoted above. Therefore, this testimony affected the entire case.
It is manifest that the testimony of the police officer that the car was traveling 70 to 90 miles per hour immediately prior to the accident necessarily amounted to pure speculation and conjecture on his part. That type of evidence is never admissible. Nevertheless, that statement by the witness, considering his position and long experience, would unquestionably have a decided effect upon the jury.
8, 9. In every case, when the matter of speed is involved, the question primarily is not how fast the automobile was traveling in specific miles per hour, but rather whether its speed, whatever it may have been in miles per hour, was excessive under all the facts, circumstances, and conditions existing at the time. Competent and qualified eyewitnesses who have observed a motor vehicle in motion may give their opinion as to the rate of speed it was traveling, but one not an eyewitness cannot express an opinion, based solely upon the physical facts existing following an accident, as to the rate of speed prior to the accident. A jury is as well able to draw its own inferences and reach is own conclusions from the facts presented as is the witness. Such testimony invades the province of the jury.
*524 In the instant case all facts upon which the police officer based his opinion were clearly presented by the evidence: the curve in the highway, the marks on the gravel shoulder, the knocking over of the cement post, the steep embankment down which the car ran and rolled, the character and locations of the debris and parts of the motor vehicle, the positions of the occupants of the car, the photographs showing the automobile's wrecked condition after it came to rest, and the distance it had traveled. From these facts, the jury was in a position to determine whether the car, immediately prior to the accident, was traveling at an excessive rate of speed under the circumstances; it did not need the assistance of an expert.
In State v. Barrett, 33 Or 194, 195, 54 P 807, Justice ROBERT S. BEAN discussed the admissibility of opinion evidence as follows:
In Everart v. Fischer, 75 Or 316, 325, 145 P 33, 147 P 189, Mr. Justice BURNETT, in an exhaustive opinion, discussed the admissibility of opinion evidence, noting and quoting from a large number of our own decisions as well as decisions from other courts. Under the authority of that case, the evidence admitted in the instant case was not entitled to be admitted, and its admission constituted error.
See also: Prauss v. Adamski, 195 Or 1, 244 P2d 598; Goodrich v. May et al., 121 Or 418, 255 P 464; Cleasby v. Taylor, 176 Wash 251, 28 P2d 795; Warren v. Hynes, 4 Wash2d 128, 102 P2d 691.
We note one other contention made by defendant. In his complaint the plaintiff alleges that he was damaged in the sum of $200,000. Defendant's motion to strike that allegation was overruled by the court. Under the statute which gives plaintiff his right of action against the personal representative of the alleged wrongdoer, the damages recoverable are expressly limited to the sum of $15,000. The allegation that plaintiff was damaged in the sum of $200,000 was an improper allegation and should have been stricken. Upon remand of this cause for a new trial, the trial court is directed to strike it.
The judgment is reversed and this cause remanded for a new trial. | dcbc17d42e9c6af35185974c1adf11171aadd8c46cc8c1f82df7709df7d5356b | 1954-11-17T00:00:00Z |
62fd9e22-be0b-4be2-8e49-0250c232928c | City of Salem v. Polanski | 202 Or. 504, 276 P.2d 407 | null | oregon | Oregon Supreme Court | 202 Or. 504 (1954)
276 P.2d 407
CITY OF SALEM
v.
POLANSKI
Supreme Court of Oregon.
Motion to dismiss appeal filed October 11, 1954.
Sustained November 17, 1954.
Chris J. Kowitz, City Attorney, and Thomas W. Churchill, Assistant City Attorney, of Salem, for the motion.
Charles W. Creighton, Jr., of Salem, contra.
MOTION SUSTAINED.
TOOZE, J.
The plaintiff-respondent has filed a motion to dismiss defendant's appeal to this court.
Defendant was charged with driving a motor vehicle while under the influence of intoxicating liquor on *505 March 22, 1953, within the corporate limits of the city of Salem, Oregon, contrary to the provisions of § 31, of ordinance No. 3401, of said city. A jury trial in the municipal court of the city of Salem on May 28, 1953, resulted in a verdict of guilty. Pursuant to the verdict, the municipal court entered its judgment and sentence against defendant. Defendant appealed the case to the circuit court for Marion county, and a jury trial was had therein in December, 1953, resulting in a verdict of guilty. The circuit court entered its judgment and sentence pursuant to said verdict. Defendant now seeks an appeal to this court from the judgment of the circuit court. No question as to the validity or constitutionality of any charter or ordinance provision has been raised in the bill of exceptions filed in this court. By its motion to dismiss the appeal, plaintiff challenges the jurisdiction of this court to entertain such appeal.
In Portland v. Duntley, 185 Or 365, 371, 203 P2d 640, Chief Justice LUSK, in writing the opinion of the court, stated:
We must look, therefore, to the statutes of this state in determining the question whether under the circumstances existing in the instant case an appeal lies to this court from the circuit court's final judgment.
We had before us in 1923 the question as to the right of appeal to this court from a circuit court in a case involving a conviction for violation of a city ordinance of the city of Portland. The conviction and judgment in the municipal court had been appealed to the circuit court of Multnomah county. The city charter *506 authorized appeals to the circuit court of Multnomah county in all cases where a defendant was sentenced to any imprisonment or to pay a fine exceeding $20 upon conviction for a violation of a city ordinance. Under the law such cases are tried de novo in the circuit court. Upon conviction and sentence in the circuit court, defendant sought to appeal to this court. At the time no statute of the state provided for an appeal to the Supreme Court from such a judgment. We dismissed the appeal on the ground that there was no common-law right of appeal, and that no statute of the state authorized such an appeal. Portland v. White, 106 Or 169, 211 P 798.
In 1927 the legislature adopted an act which provided for appeals to the Supreme Court in all cases where an appeal was authorized and had been taken from a municipal court to a circuit court for violation of a municipal ordinance: ch 114, Oregon Laws 1927.
The legislature in 1929 amended ch 114, Oregon Laws 1927, and in such amended statute the provision for appeal to the Supreme Court was entirely eliminated: ch 196, Oregon Laws 1929. This act became § 95-2802, OCLA.
In 1942 in dismissing an appeal to this court in the case of City of Portland v. McSparran, 169 Or 377, 379, 129 P2d 65, we discussed the effect of the Act of 1929. We said:
In 1943 § 95-2802, OCLA (ch 196, Oregon Laws 1929), was amended: ch 277, Oregon Laws 1943. The amended Act provided:
In 1947 § 95-2802, OCLA, as amended by ch 277, Oregon Laws 1943, was again amended: ch 462, Oregon Laws 1947. No change was made in the Act as adopted in 1943, except the addition of a paragraph thereto which dealt with matters not material to the problem before us.
Section 95-2802, OCLA, as amended, was again, and for the last time, amended in 1949: ch 121, Oregon Laws 1949. As so amended in 1949, the Act reads as follows:
In ORS the above statute has been subdivided into four separate sections: ORS 221.350, 221.360, 221.370, and 221.380. However, no change is made in the substance of the Act of 1949.
By specifically providing for appeals to the Supreme Court in cases involving constitutional questions, but omitting to make similar provision for the appeal of other municipal court cases involving violations of city ordinances (except to the circuit court), the legislature clearly indicated its intention that appeals *510 to the Supreme Court from the judgment of the circuit court in the latter type of cases should not be permitted. The history of this legislation as above set forth also compels this conclusion. The judgment of the circuit court is final.
We hold, therefore, that there can be no appeal from the circuit court to the Supreme Court in cases involving ordinance violations, arising in the municipal court and appealed to the circuit court, excepting only where constitutional questions are involved. The motion to dismiss the appeal is sustained.
The appeal is dismissed. | ef4f3458b12a12bf6a24359c12ba93ef338d7d9bf1ae3d6ae7d4261a673ff8ad | 1954-11-17T00:00:00Z |
c39d1711-c1d7-48fb-be67-44c2fc4dcd2d | Hodges Agency, Inc. v. Rees | 202 Or. 139, 272 P.2d 216 | null | oregon | Oregon Supreme Court | Affirmed June 30, 1954.
Petition for rehearing denied September 15, 1954.
*140 C.C. Proebstel and B.D. Isaminger, of Pendleton, argued the cause and filed a brief for appellant.
Edward J. Clark argued the cause for respondent. On the brief were Peterson, Clark & Peterson, of Pendleton.
Before LATOURETTE, Chief Justice, and WARNER, ROSSMAN and TOOZE, Justices.
AFFIRMED.
ROSSMAN, J.
This is an appeal by Harvey A. Stover, one of the two defendants, from a decree entered by the circuit court in favor of the other defendant, Harold G. Rees, which adjudged that Rees is the rightful owner of the promissory note which is the subject matter of this suit. The plaintiff, G.F. Hodges Agency, Inc., held the note in escrow. Its denomination is $5,000. Rees *141 was its maker and Stover is its payee. While the plaintiff was in possession of the note as escrow agent, Rees demanded its return and Stover made a counter demand for its delivery to him. At that juncture, the plaintiff, having impleaded the two rival claimants, participated no further in the suit. The circuit court ordered Rees to plead first. At the conclusion of the trial the court ordered the return of the note to its maker, Rees.
The aforementioned note was given by Rees May 8, 1951, a day after the plaintiff, Stover, Rees and the latter's brother had executed a paper known as an earnest money receipt whereby the Reeses undertook to purchase, and Stover to sell, a business located in Pendleton known as Pendleton Distributing Company. We will presently state the details.
Before the title instruments were prepared, an incident developed which the Reeses believed denied to them a part of the consideration for which they had bargained, and which caused them to contemplate the rescission of the transaction. Conferences then occurred which culminated in the execution by the parties on June 4, 1951, of an additional instrument which seemed to reconcile the misunderstandings. It pertained, in part, to the note.
The following are the assignments of error:
We will now state the circumstances which led to the giving of the note. For many years Stover had engaged in the business of distributing beer and other beverages in the counties of Morrow and Umatilla. His business was entitled Pendleton Distributing Company. He purchased beer wholesale from breweries and sold it to taverns and retailers. The beer in which he dealt had the brand names of Heidelberg, Bohemian and Miller. He also handled Columbia ale.
Heidelberg beer and Columbia ale are made by Columbia Breweries in Tacoma, Washington. Bohemian beer is produced in Spokane. The brewer of Miller beer maintains an office in Portland. Distributors, such as Stover, have no written agreement with the brewery which supplies them, nor do they have any contract, oral or otherwise, which assures them of any prescribed period in which they may handle the brewery's product. Distributorships may be terminated at any time and without notice.
May 2, 1951, Stover authorized the plaintiff, a broker, to sell the Pendleton Distributing Company for $45,000. The following day he notified the broker that he had increased the price to $50,000.
The defendant, Harold G. Rees, and his brother, Raymond E. Rees, in May of 1951, were engaged in farming. Neither had had any experience in the business of distributing beer or other beverages. When they heard that the Pendleton Distributing Company was for sale they were interested. The defendant, Harold G. Rees, in the subsequent negotiations for the purchase of the distributing enterprise, acted not only for himself but also for his brother. The latter *143 is not a party to this suit, and by the name Rees we shall constantly refer to the defendant, Harold G. Rees, and not to his brother.
Two or three days after Stover had authorized G.F. Hodges Agency, Inc., to sell his business, Rees and his brother decided to offer for it $45,000. Their offer contemplated that they would pay $15,000 at time of purchase, $15,000 more in one year and the remaining $15,000 in two years. Rees called upon the plaintiff and made the offer.
Immediately after Stover had authorized the plaintiff to sell the business he went to a hospital in Portland where he shortly underwent surgical treatment. May 7, 1951, Rees and G.F. Hodges, of the agency which bears that name, went to the hospital in Portland where Stover was awaiting surgery and presented to him Rees' offer. Before leaving Pendleton for Portland, Hodges had prepared a document known as an earnest money receipt in which the consideration was entered as $45,000, payable in the manner above mentioned. It provided that the business and all of its assets would be sold and conveyed to the Reeses. The paper was tendered to Stover for his acceptance and signature. At that point there occurred some bickering over the price, in the course of which Stover stated that he would not sell for less than $50,000. Presently Rees inquired whether Stover would be willing to accept Rees' note for $5,000 payable two years, seven months and 23 days hence, and bearing no interest. Stover answered in the affirmative. Thereupon it was agreed that the earnest money receipt should be signed and that, in addition to the $5,000 promised to Stover in that paper, he should also have Rees' $5,000 note. Having reached that agreement, the three men signed the earnest money receipt, each *144 in the appropriate place. At the same time Rees handed Hodges, in accordance with the demands of the earnest money receipt, Rees' check for $5,000. Concurrently Hodges wrote in longhand a note for $5,000 which Rees signed. Rees' brother did not sign the note and, since he had not authorized Rees to do so, he did not become a party to this suit. A couple of days later, when the earnest money receipt was presented to the brother in Pendleton, he signed it. The day after the meeting in the hospital Hodges secured a printed form of a note and, after writing in its blank spaces the proper entries, Rees signed it. It was substituted for the handwritten note which Rees signed the preceding day, and it happens in that way that it bears the date of May 8 while all the other papers are dated May 7. That note is the subject matter of this suit.
The earnest money receipt contains, among others, the following provisions:
The above portrays the inception of the transaction which eventually yielded this appeal. As we *145 have signified, an unexpected episode occurred shortly after May 7 and before the papers essential to the completion of the transaction had been prepared. The episode was the transfer by the maker of Bohemian beer of its distributorship for Morrow and Umatilla counties to a competitor of Pendleton Distributing Company. The transfer was made a few days after the earnest money receipt was signed. The Reeses believed that the loss of the distributorship denied to them a part of the consideration for which they bargained when they undertook to purchase the Pendleton Distributing Company and threatened to rescind the transaction. Then some conferences occurred and eventually the paper, bearing date June 4, 1951, was signed by the parties. We shall now state the circumstances.
While the parties were in the hospital, Stover assured Rees that he would cooperate with him in his efforts to continue the business profitably. Stover recommended to Rees that he call upon the breweries which supplied Pendleton Distributing Company with beer, but added, according to Rees, that it would be unnecessary to call at once upon the producer of Bohemian beer. Rees swore that Stover told him that he had recently spoken to an official of the Bohemian brewery, whom he termed a friend of long standing, and had received promises that the distributorship of the Pendleton Distributing Company would be continued in the event of a sale unless the buyer, after a fair trial, proved himself incapable. According to Rees, Stover assured him, "Don't worry about Bohemian, I contacted them before I came down here, and they will go along with any sale that I make." Stover suggested to him, so Rees swore, that upon returning to Pendleton he should telephone to one *146 Harry Sleeth, the sales manager of Bohemian. Stover, as a witness, denied that he had mentioned particularly Bohemian and its sales manager, Sleeth. He, however, testified: "I had contacted all of my suppliers and they had agreed to go along with the new buyer until he proved or disproved himself * * *." When Rees and Hodges left the hospital in Portland they called upon the agency of Miller beer and then went to Tacoma where Rees presented himself to the producer of Heidelberg beer and Columbia ale.
May 14, after returning to Pendleton, Rees took charge of the Pendleton Distributing Company. In his management he retained Stover's father, who had conducted the business for a year or more during his son's illness. On the day when he assumed charge (May 14) Rees, according to his testimony, followed Stover's suggestion and sought to reach Sleeth upon the long distance telephone but discovered that he was temporarily absent from Spokane. The call was not completed until May 21. At that time Sleeth told him, so Rees swore, that he would be in Pendleton shortly. Two or three days after Rees' unsuccessful attempt of May 14 to speak to Sleeth upon the telephone, Bohemian's local representative, Harry Owens, called at the office of Pendleton Distributing Company and observed that a sale to the Reeses was under way. When he spoke to Rees he was told by the latter of the effort he had made to reach Sleeth on the long distance telephone. Rees also told Owens, as the latter acknowledged, that he would like to have the distributorship of Bohemian beer remain with the Pendleton Distributing Company. According to Owen, Rees made a poor impression upon him and he telephoned to Sleeth that he (Sleeth) should come to Pendleton.
About four days after Owens had come to Pendleton *147 Sleeth arrived. That was the seventh or eighth day after Rees had taken charge of the business. Before the two spoke to Rees they called upon the owners of a beer distributing concern located in Pendleton entitled Blue Mountain Distributing Company, and inquired whether that company was available as distributor for Bohemian beer. They received a favorable reply. We take the following from Sleeth's testimony:
The morning following the conference with the owner of the Blue Mountain Distributing Company Sleeth and Owens called upon Rees. Presently they told him that Bohemian would supply him no further with its product. They awarded the distributorship to Blue Mountain Distributing Company.
When Rees discovered that Bohemian would no longer supply the Pendleton Distributing Company with beer he declared, "I don't want the business if I don't have Bohemian with it." He and Sleeth then repaired to Stover's home where more than one conference took place. Stover urged Sleeth to reconsider and even telephoned to the president of the Bohemian brewery. His efforts to dissuade Sleeth and retain the distributorship of Bohemian beer for the Pendleton Distributing Company were unsuccessful. At that point Rees announced a purpose to "throw it back into Harvey's lap." By Harvey he meant Stover. In taking that position, he asserted that the $5,000 note was in the nature of a guaranty fund and depended *148 upon the provision of the earnest money receipt quoted in a preceding paragraph, which follows:
1, 2. Stover claims that the Reeses lost the Bohemian distributorship through their failure to pay proper heed to the wishes of Bohemian. He claims that Bohemian was dissatisfied with Rees because the latter removed a Bohemian sign from a large truck in which Pendleton Distributing Company brought beer from the breweries which it distributed, and also because Rees had not notified Bohemian promptly of his intended purchase.
As a witness in behalf of Stover, Sleeth mentioned Rees' removal of the sign and Rees' failure to notify Bohemian of the purchase before entering upon it.
The truck from which Rees removed the Bohemian sign was used by Pendleton Distributing Company in hauling from the Heidelberg and Bohemian breweries the beer which it sold. Since the volume of sales by the Pendleton Distributing Company of Heidelberg beer was almost double that of Bohemian beer, Rees believed that the truck should not carry the Bohemian sign. When the latter was removed, the truck was free from all signs. The evidence warrants a belief that Stover approved the removal of the sign. Sleeth did not attach controlling importance to Rees' act in removing the sign. He testified:
*149 If the removal of the sign from the truck had been the cause of the trouble, the latter could have been solved by restoration of the sign.
It will be recalled that Stover notified Bohemian of his intention to sell the Pendleton Distributing Company and that Rees testified that Stover assured him that he would not have to notify Bohemian at once. We have mentioned the fact that Rees sought within a week after the earnest money receipt was signed to speak to Sleeth on the long distance telephone. It is apparent from the testimony of Owens and Sleeth that they became apprised of the impending transaction within a few days of its inception and before it was fully consummated. Sleeth testified:
Although the evidence indicates that Sleeth may have been concerned over the fact that Rees removed the Bohemian sign from the truck and over Rees' failure to notify Bohemian before he signed the earnest money receipt, yet it indicates that other facts persuaded Sleeth to transfer the distributorship from the Pendleton to the Blue Mountain Distributing Company. Sleeth stated that "a multitude of things" influenced him when he made the transfer. Until about a year before the transaction between Stover and the Reeses, the Pendleton Distributing Company sold more Bohemian than Heidelberg beer. Then a change occurred *150 and Bohemian dropped into second place. The evidence seems to indicate that Bohemian, through a mischance in the brewing process, was for a short period the cause of its poor sale, but the fact remains that after it removed the cause Bohemian beer failed to regain its former position with the Pendleton Distributing Company. Such was the state of affairs when Stover sold to the Reeses. Stover was a personal friend of Sleeth and also of the president of Bohemian Brewing Company. His declining volume of sale of Bohemian beer took place during a period when he underwent a succession of operations. Those circumstances may account for the fact that the Bohemian Brewing Company did not discontinue the distributorship of Stover after he failed to regain for its product its former leadership and volume. But Bohemian's slump into second place undoubtedly gave Sleeth a strong urge to embrace the first opportunity which would present itself to improve the local distributorship. By so stating the situation, we make no implication that the transfer to Blue Mountain Distributing Company improved Bohemian's position. Sleeth's testimony indicates that he had devised for himself, as was natural, rules which guided him in selecting distributors for Bohemian beer. For example, he disfavored generally as distributor anyone who, in addition to handling Bohemian beer, represented another brewery which was also located in a western state. Next, he disapproved a distributor for whom Bohemian was of secondary importance. At the time he transferred Bohemian to Blue Mountain Distributing Company, Bohemian beer represented only 33 per cent of the sales of Pendleton Distributing Company, whereas Heidelberg was 57 per cent of its total. In the presence of influences of that consequence, we *151 believe that the removal of the sign from the truck and Rees' failure to speak immediately to Bohemian were not of major importance.
The foregoing indicates the difficulties in which Stover and Rees found themselves engrossed when Bohemian transferred the distributorship from the Pendleton to the Blue Mountain Distributing Company. When Rees saw that Bohemian had been lost and that Stover could not regain it, he told Stover, Sleeth and Hodges that he did not care to complete the purchase but intended to rescind the transaction. According to him, Hodges urged him not to do so, and added, "Maybe we could come to some deal"; that is, some modified form of the transaction. Going on, Rees testified that he "went on sitting there, waiting to see what would happen." About that time it occurred to Stover that he might be able to find some other brewery whose product would take the place of Bohemian beer. Referring to Rees by his Christian name of Harold, Stover testified:
The above represents the state of affairs after Bohemian had transferred the distributorship of its product from the Pendleton to the Blue Mountain Distributing Company. It is clear that in that period Rees wished to rescind the transaction. To use his own words, he intended to "throw it back into Harvey's [Stover's] lap." Stover, in order to dissuade Rees from so doing, announced a purpose to find another *152 brand of beer which would take the place of Bohemian. The plaintiff, in order to prevent the sale from failing, urged Rees not to rescind, to be patient and to await a solution of the difficulties.
June 4 Stover and Rees met in the plaintiff's office and there came to an understanding which Hodges reduced to writing. A copy of the writing follows:
Rees swore that he would have rescinded the transaction of May 7 if the agreement of June 4 had not been effected.
On June 8, 1951, Stover executed the various papers whereby the business was transferred to the Reeses. They consisted in part of a bill of sale, a bulk sales affidavit and a notice of Stover's retirement from the business. Rees claims that he did not become owner until that day. Following June 4 Stover obtained the names of four California breweries and, at Rees' expense, sent them telegrams in an effort to secure for the Pendleton Distributing Company a substitute for Bohemian. The efforts were unsuccessful. However, it developed that a brand of ale known as Olde English ale was available for the Pendleton Distributing Company. The demand for ale, however, was minor and when Rees consulted Columbia Breweries he was told that it was opposed to his dealing in Olde English ale. That brewery reminded him that it produced Columbia ale which he distributed. Since the producer *154 of Bohemian beer had withdrawn that product from the Pendleton Distributing Company, Rees decided not to jeopardize his distributorship of Heidelberg beer and thereupon declined to accept Olde English ale. We do not believe that Stover criticizes Rees' decision. Through his personal efforts, Rees acquired the right to deal in his territory in the products of Canada Dry. Apart from the acquisition of that dealership, Pendleton Distributing Company gained no other beverage. It is clear that both Rees and Stover sought to obtain for it a satisfactory substitute for Bohemian. Undisputed figures compiled by an auditor show that the volume of business of the Pendleton Distributing Company after Bohemian withdrew its product has been substantially less than previously.
October 25, 1951, Stover wrote to Rees stating that he (Stover) was entitled to the note which is the subject matter of this suit. In his letter he stated:
The evidence warrants a finding that neither of those assertions was true. October 31, 1951, Rees' attorney answered Stover's letter by declaring:
*155 The letter insisted that Rees was entitled to the return of his note. On the same day Rees demanded of the plaintiff the return of the note.
To avoid misconception of the issues, we add that Rees' pleadings do not charge that Stover was guilty of fraud or intentional deception in the sale of the Pendleton Distributing Company.
From the facts above reviewed, it is evident that a dispute and misunderstanding arose between Rees and Stover shortly after the earnest money receipt was signed. Their disagreement stemmed from the fact that, contrary to the expectations of the parties, Bohemian transferred the distributorship of its product from Pendleton Distributing Company to a competitor of the latter. When that occurred, Rees asserted, as we have seen, that he had a right to rescind the transaction. He cited the clause of the earnest money receipt which required Stover to deliver to him all assets within 60 days of the date of the receipt. He also claimed that it was understood when he signed the note for $5,000 that Stover would not be entitled to its delivery unless all assets were delivered to him (Rees) within the prescribed period. Stover, upon the other hand, argued that he actually transferred to the Reeses all assets when he gave Rees the keys to the place of business on May 7, and that the loss of the Bohemian account did not take place until after Rees had taken charge. Further, according to him, Rees himself was responsible for the lost distributorship. We have made this recapitulation for the purpose of taking note particularly of the fact that the signing of the earnest money receipt was succeeded by a bona fide dispute which centered in the meaning and application of that paper. We are satisfied that *156 all parties to the dispute, including the plaintiff, acted in good faith and were honest in their assertions. Rees, we believe, did not wish to abandon the purchase of the distributing concern, but felt that unless he and his brother received the Bohemian account, as well as all other assets, the business was not worth the consideration expressed in the earnest money receipt. He did not believe that the business became his until he received the bill of sale on June 8. Evidently, while the parties were engaged in their conflicting contentions, they were looking forward to a possible solution of them. Before long they reached the agreement represented by the paper which Hodges wrote and which they signed June 4. We proceed now directly to the first assignment of error.
It will be recalled that the agreement of June 4 stipulates that
Stover should have the note; otherwise Rees.
In behalf of Stover's efforts to defeat the agreement of June 4, it is argued that Rees made no definite promise to forbear the institution of a suit for the rescission of the sale which is evidenced in the earnest money receipt. We think that Stover misconceives the nature of the agreement of June 4. The phraseology of that instrument does not display the technical nicety of a skilled scrivener, but the meaning is there and is discernible. The agreement was not primarily a *157 promise to forbear, but one of compromise. Because Bohemian had withdrawn from the Pendleton Distributing Company its product, Stover agreed to reduce to the extent of $5,000 the purchase price payable by Rees, if the parties could not secure within 60 days a satisfactory substitute product, or if the remaining beverages did not produce revenue equal to that previously received.
Stover claims that the agreement evidenced by the earnest money receipt conferred upon Rees no enforceable rights to deal in Bohemian beer and that, accordingly, the loss of that item gave him no right to rescind the agreement. Laying aside the rights of the parties, as a court would determine them, we look to the rules which govern consideration for compromise agreements. The following well chosen words of Mr. Justice ROBERT BEAN, in Smith v. Farra, 21 Or 395, 28 P 241, 20 LRA 115, are apt:
In that case, both of the parties had misconceived the rule of damages for breach of covenant and, in compromising, did so according to their untutored conception of their rights. They assumed that the measure of damages was the value at the time of the breach. In fact, the law was clear that the measure of damages was the consideration paid and interest upon it. The decision sustained the compromise, and the defendant was held liable to pay the agreed amount although it was greater than the paid consideration plus interest.
In Butson v. Misz, 81 Or 607, 160 P 530, a compromise was upheld as enforceable even though no valid claim underlay the compromise. The plaintiff had asserted a claim based upon a purported provision covering unpaid taxes in the mortgage which he held. Actually the mortgage contained no such provision. This court declared:
*159 Restatement of the Law, Contracts, § 76, says:
See, also, Williston on Contracts, Rev Ed, § 135.
If Rees had sought to rescind during the 60 days mentioned in the earnest money receipt, the agreement of June 4 would have been available to Stover as a defense requiring Rees to accept the return of the $5,000 note for the loss of Bohemian beer.
3. We believe that since Rees yielded his asserted right to rescind, and since that right was deemed by himself and Stover honestly and reasonably to be valid, the agreement of June 4 was based upon valid consideration. We find no merit in the first assignment of error and now proceed to the second.
4. We are in accord with Stover's contention that the testimony which we have reviewed cannot be used to vary the terms of the agreement which was effected May 7. That instrument must be construed to mean that the 60-day period referred only to the transfer of the equipment which constituted part of the assets of the Pendleton Distributing Company. However, the effect of the testimony was to show the belief of the parties that a claim existed. The rights of the parties in this suit are governed, not by the contract of May 7, but by the compromise agreement of June 4. Young v. King, 85 Or 22, 166 P 53. The reply filed *160 by Stover to the answer of Rees alleged absence of consideration for the compromise agreement. The testimony showing the belief of the parties that Rees had a right to rescind was properly admitted to reveal the consideration for the compromise agreement. We find no merit in the second assignment of error.
5. We come now to the third assignment of error. It is that the trial court erred in finding that Rees was not the cause of the failure of performance of the compromise agreement. The record amply supports the conclusion of the trial court that Stover demonstrated no power to obtain a substitute for the lost Bohemian beer, and that Rees' conduct was free from fault. The third assignment of error is lacking in merit.
The decree of the circuit court is affirmed. | 3ebfeb64785e61c621d1b677007aeb71db79418a026c5fab97618d256136cf5b | 1954-06-30T00:00:00Z |
23de2175-b19b-41c9-b141-6797b7e6811a | Cribbs v. Montgomery Ward & Co. | 202 Or. 8, 272 P.2d 978 | null | oregon | Oregon Supreme Court | Affirmed July 27, 1954.
*9 Nels Peterson, of Portland, argued the cause for appellant. With him on the brief were Frank H. Pozzi and Sidney I. Lezak, of Portland.
Bruce Spaulding argued the cause for respondents. On the brief were Wilbur, Mautz, Souther & Spaulding and Kenneth E. Roberts, of Portland.
Before WARNER, Acting Chief Justice, and LUSK, BRAND and PERRY, Justices.
AFFIRMED.
*10 LUSK, J.
This is an action for slander. The case was tried to a jury, which returned a verdict for the defendants. Plaintiff has appealed from the consequent judgment.
The assignments of error upon which plaintiff mainly relies are all based upon rulings of the court sustaining objections to the introduction of certain testimony in rebuttal. In order to understand the issue thus raised it will be necessary to refer briefly to the pleadings and the evidence.
The complaint alleged that defendants
General damages in the sum of $25,000 and punitive damages in a like sum were sought. In their amended answer the defendants, besides denying the utterance of the defamatory words, affirmatively pleaded what is claimed to be and was apparently accepted by the plaintiff and the court as a plea of qualified privilege. The affirmative defense reads:
It should be noted here that the sole witness for the defendants was the defendant Hutchinson, and that he denied that he spoke the defamatory words and did not testify to their truth or that he believed them to be true.
At the time of the alleged defamatory publication an action for false imprisonment was pending between Afton Cribbs as plaintiff and the defendants in this case as defendants. Plaintiff had formerly been in the employ of Montgomery Ward, which discharged her in May, 1949. At that time Hutchinson was chief investigator at Montgomery Ward. Subsequently plaintiff secured employment as a waitress in a restaurant known as Hermie's Drive-In, operated by Hermine Charnquist and her husband. The sole witness to the publication of the defamatory words was Mrs. Charnquist, who testified in substance as follows: In January, 1951, the defendant Hutchinson, with whom she was acquainted as a business patron, came to the restaurant and sought a private interview with Mr. and Mrs. Charnquist, which was granted. Hutchinson asked the Charnquists if they knew that a girl working for them had been fired from Montgomery Ward. Mrs. Charnquist said they did not, and asked who the girl was, and Hutchinson said that it was Mrs. Cribbs, the plaintiff. Mrs. Charnquist asked Hutchinson why she was discharged and he answered, "She was let go for *12 misconduct in duty and also for light fingeredness." Hutchinson also said: "Did you know that we have a suit against her?"
Apart from his denial that he told the Charnquists the reason for plaintiff's discharge, Hutchinson's testimony was much like that of Mrs. Charnquist's. He testified that he went to the Charnquists' restaurant at the request of the law firm which was representing Montgomery Ward and himself in Mrs. Cribbs' action against them, to find out if Mrs. Cribbs had been able to obtain employment; that he asked the Charnquists if he could talk to them privately, and, when they were in a private room together, he told them that he wished to inquire about one of their employees, Mrs. Cribbs, and informed them of the pending law suit; he asked how Mrs. Cribbs was getting along and whether her work was satisfactory, and they said yes; they asked him what his interest was and he explained that she had been an employee at Montgomery Ward and had been discharged. Mrs. Charnquist asked him why she had been discharged, and he answered that he could not tell her just exactly why. On cross-examination Hutchinson admitted that he knew that plaintiff was employed at Hermie's Drive-In before he went there to inquire about her, and that his real reason for going was to find out "if she was permanently employed and was getting along all right".
In rebuttal plaintiff offered to prove that on May 17, 1949, the defendant Hutchinson, in the office of the protection department at Montgomery Ward, falsely accused her of stealing a bottle of hand lotion, and that on May 18, 1949, Hutchinson told the plaintiff that he would personally see to it that she did not get unemployment compensation, and on the same day he said to her, "Don't ever use Montgomery Ward as a reference *13 because I will see that you are blackballed from any job that you get." Defendant's objections to the proposed testimony were sustained by the court on the ground that evidence of actual malice should have been given in the case in chief.
1. Upon the question thus raised the plaintiff invokes the general rule that "When the defendant has established a prima facie case of privilege, it ordinarily devolves up the plaintiff to rebut this showing by showing of proof of actual malice, want of good faith" etc. 3 Am Jur 245, Libel and Slander § 264. See, also, Kilgore v. Koen, 133 Or 1, 9, 288 P 192; Odgers on Libel and Slander (6th ed) p. 208; 53 CJS 162, Libel and Slander § 101; ALI Restatement, Torts § 613 and Comment f, p. 302.
2. If the alleged communication was privileged it was because Hutchinson had a moral or social duty to inform the Charnquists of the reason why the plaintiff had been discharged from Montgomery Ward. In Upton v. Hume, 24 Or 420, 428, 33 P 810, 41 Am St Rep 863, 21 LRA 493, we quoted with approval the following statement of the rule of qualified privilege involved from Harrison v. Bush, 5 E & B 348, 25 LJQB 29:
See ALI Restatement, Torts § 595; Odgers, op cit. p. 206.
*14 A common instance of a privileged communication made in pursuance of a moral or social duty is where the defendant is asked as to the character of his former servant by one to whom the servant has applied for a situation or by whom the servant is presently employed. Odgers, op. cit. 209, 210; 53 CJS 185, Libel and Slander § 107. Such a communication, it has been held, may be privileged even though it is volunteered (Fresh v. Cutter, 73 Md 87, 20 A 774, 25 Am St Rep 575, 10 LRA 67), although there is authority to the contrary (Draper v. Hellman Commercial Trust & Savings Bank, 203 Cal 26, 263 P 240).
3. In any view of the question, however, the privilege claimed here was established by the plaintiff in her case in chief. If a conditional privilege was not proved by the plaintiff is was not proved at all. That being so, it was incumbent upon plaintiff, if she would make a case sufficient to go to the jury, to introduce evidence in the first instance of actual or express malice so as to destroy the privilege. It was so held in Kilgore v. Koen, supra, where a publication in a newspaper was found to be qualifiedly privileged, and, since the evidence of the plaintiff showed the circumstances of the publication and no evidence of actual malice was introduced by the plaintiff, this court sustained a judgment of nonsuit. The court, therefore, committed no error in excluding the proffered evidence.
4. While the burden of proving malice where an occasion of privilege is shown always remains with the plaintiff, yet the order of proof may not always be the same, and it is only where the privileged occasion first appears in the defendant's case that, ordinarily, proof of actual malice to destroy the privilege constitutes proper rebuttal. Of course, the trial court has power *15 to vary the order of proof. ORS 17.210 (3), 17.215. The latter section reads:
5. Plaintiff applied to the court, after the ruling we have discussed, for leave to reopen her case in chief for the purpose of proving express malice. The court denied the request, and the denial is assigned as error. The application was addressed to the sound discretion of the court, and we cannot say that the discretion was abused in this instance. See Prestbye v. Kliphardt, 113 Or 59, 231 P 187.
6. The final assignment of error is directed to the court's overruling of plaintiff's objection, on the ground that it was leading, to the following question put on direct examination to the witness Hutchinson:
Under the statute ORS 45.560 the court had discretion to permit the question even though it was leading. Similar questions were held not necessarily leading in Coates v. Slusher, 109 Or 612, 621, 222 P 311. Dean Wigmore's discussion on this subject may be read with profit. 3 Wigmore on Evidence (3d ed) §§ 769, 772. We find no error in the ruling.
The judgment is affirmed. | 0bf30ff2ab65282d5e756f9f1948771c0aac0f5e0d34f740fb0078ae5a75841d | 1954-07-27T00:00:00Z |
a5a036ac-cca4-4331-b72e-bcc81f00f454 | Franklin v. State Ind. Acc. Com. | 202 Or. 237, 274 P.2d 279 | null | oregon | Oregon Supreme Court | Reversed September 22, 1954.
*238 Howard R. Lonergan, Assistant Attorney General, of Portland, argued the cause for appellant. With him on the brief was Robert Y. Thornton, Attorney General, of Salem.
W.A. Franklin argued the cause for respondent. On the brief were Anderson, Franklin & Landye, of Portland.
Before LATOURETTE, Chief Justice, and WARNER, ROSSMAN and TOOZE, Justices.
REVERSED.
TOOZE, J.
This is an appeal by the State Industrial Accident Commission, defendant, from that portion of a judgment in favor of Alice Jean Franklin, plaintiff, which provided "that the defendant shall pay to Anderson, Franklin & Landye, attorneys for plaintiff herein, an attorney fee in the sum of $500.00, which sum is a reasonable sum to be allowed said attorneys for their services herein, and said attorney fee to be paid forthwith from the Industrial Accident Fund as an administrative expense".
Plaintiff sustained an accidental injury arising out of and in the course of her employment through violent and external means at a time when she was entitled to the benefits of the Workmen's Compensation Law. *239 Her claim for compensation was denied by the State Industrial Accident Commission in its entirety. She appealed to the circuit court for Multnomah county from the order of denial, after having followed all statutory procedural requirements. The case was tried to a jury. The jury found that she had sustained a personal injury by accident arising out of and within the course of her employment by violent or external means within the meaning of the Workmen's Compensation Law, entitling her to compensation.
Based upon the verdict of the jury, the trial court entered judgment referring plaintiff's claim back to the State Industrial Accident Commission with directions to allow it and to pay plaintiff compensation as the law provided. In addition, the court included in its judgment the allowance of attorneys' fees as above noted.
It will be observed that the defendant Commission is directed to pay the attorneys' fee out of the Industrial Accident Fund as an administrative expense, rather than out of any compensation award made to plaintiff.
Defendant contends on this appeal that the trial court was without jurisdiction to fix an attorney fee in this case, and that that portion of the judgment is void.
The parties agree that the right to an attorney fee as a part of a judgment entered in cases brought pursuant to the provisions of the Workmen's Compensation Law is purely statutory.
Until July 1, 1951, attorneys' fees in cases brought under the Workmen's Compensation Law were payable out of the compensation awarded a claimant. In no case were they chargeable directly against the State *240 Industrial Accident Fund. ORS 656.590 (adopted in 1933: ch 115, Oregon Laws 1933) provides:
In 1951 the legislature enacted what is now ORS 656.588 (ch 330, Oregon Laws 1951), which reads as follows:
This statute deals with a particular situation, is complete in itself, and the language used is plain and *241 unambiguous. When an injured workman appeals to the circuit court from a commission order rejecting his original claim for compensation, and prevails, the commission, not the court, shall allow a reasonable attorney's fee to the claimant's attorney.
1, 2. In the construction of statutes the governing rule to be followed and the one which is law and binding upon the court is to ascertain and declare the legislative intent. ORS 174.010 and 174.020. Where the language used in a statute is plain, unambiguous, and understandable, the intent of the legislature must be ascertained from that language. Swift & Co. and Armour & Co. v. Peterson, 192 Or 97, 108, 233 P2d 216; 82 CJS 571, Statutes, § 322(1); 82 CJS 577, Statutes, § 322(2).
3. It is elementary that when the legislature, in enacting a law, makes use of plain, unambiguous, and understandable language, it is presumed to have intended precisely what its words imply. There is no occasion to go beyond those words and their plain meaning to ascertain by application of rules of statutory construction the legislative purpose.
4. Had the legislature intended that the court should have the power to fix an attorney's fee upon such an appeal as is mentioned in the statute, it would have so provided.
5. In support of their contention that the statute should be construed as vesting authority in the court upon the appeal to fix and allow a reasonable attorney's fee, counsel argue that otherwise the Commission will be in a position to treat them unfairly in the amount finally awarded. Of course, the presumption is that the Commission will, in all cases, act fairly and in good faith, but however that may be, this argument relates to a matter of policy, and not to a *242 matter of law. It might be that in cases such as this the court should be given authority to fix a reasonable attorney's fee and to order it paid, as a part of its final judgment on the appeal. Nevertheless, that question is exclusively for legislative determination.
In attempting to fix and allow a reasonable attorney's fee in this case, the trial court acted beyond its jurisdiction, and that part of the judgment is wholly void and of no effect.
The judgment as to the attorney's fee is reversed. | f045f408b3f77115dc6a670f2cb8a55334908221cd87117a30c47d71ab094949 | 1954-09-22T00:00:00Z |
12547dbd-300d-4689-9567-4396423fbc31 | Moore v. State Finance Co. | 202 Or. 265, 274 P.2d 559 | null | oregon | Oregon Supreme Court | Affirmed October 6, 1954.
*266 Roy Harland, of Salem, argued the cause and filed a brief for appellant.
James W. Walton, of Corvallis, argued the cause for respondent. On the brief were Robert G. Ringo and Richard Mengler, of Corvallis.
Before WARNER, Acting Chief Justice, and ROSSMAN and PERRY, Justices.
AFFIRMED.
ROSSMAN, J.
This is an appeal by the defendant from a judgment, based upon a verdict, in the amount of $398.22 which the circuit court entered in favor of the plaintiff. The action was instituted by the plaintiff to recover the reasonable value of plumbing material and labor which the plaintiff, according to his complaint, supplied upon the order of the defendant.
The defendant-appellant submits three assignments of error which read as follows:
The defendant-appellant's brief states:
*267 Due to its length, we shall not copy herein the motion for an involuntary nonsuit. Its grounds are set forth in the two following propositions which we quote from the appellant's brief:
The disposition of the assignments of error will be facilitated by a review of the evidence.
The plaintiff, A.A. Moore, is engaged in the plumbing business. The business of the defendant, State Finance Company, centers in real estate. A witness declared that it makes real estate mortgage loans and acts as a real estate broker. The defendant's president is Mr. Ernest Miller.
In 1947 the defendant owned a tract of 16 lots in Corvallis which came to the attention of one Charles A. Petrehn, who, seemingly, was a building contractor. Although the evidence upon the subject is scant, it shows that a decision was reached by someone that 16 houses should be built upon the lots. January 7, 1948, the defendant conveyed the lots to Petrehn, and thereupon the construction work was begun. The charge for labor and material which underlies this case was made by the plaintiff after he had performed the plumbing work upon one of the 16 houses. The plaintiff accounted, with the following explanation, for the fact that he performed the plumbing work upon the houses:
Petrehn needed mortgage loans in order to render it possible for him to proceed with his venture. The record indicates that he obtained the needed mortgage loans from the Sun Life Insurance Company of Canada. Although the information afforded by the record is slight, it suggests that the defendant was the medium through which Petrehn obtained the loans.
Conrad Paulson, a witness for the defendant, who identified himself as an employee in the defendant's mortgage loan department, testified:
He then went on:
*269 It will be observed that Mr. Paulson testified that the mortgagee of the 16 mortgages was the Sun Life Insurance Company of Canada. Mr. Paulson was the only witness who gave any testimony upon that subject. The mortgages were not produced at the trial. Mr. Miller did not testify. The briefs of both parties state that the defendant was the mortgagee. In view of the fact that the briefs repeatedly state that the defendant was the mortgagee, we examined the record with care. Our examination has disclosed nothing whatever which indicates that the defendant was the mortgagee. Paulson, the sole witness upon the subject, declared that the mortgagee was the Sun Life Insurance Company. After he had made that statement, and while he was still upon the witness stand, a colloquy occurred between counsel, in the course of which defendant's attorney declared: "The witness has already testified that Mr. Petrehn gave these mortgages, sixteen in number, to the Sun Life Insurance Company."
The above is substantially all of the information which the record furnishes about the mortgages. It will be observed that "as called upon, the State Finance Company advanced funds for the purposes of construction." No explanation was given for that course of procedure. It is clear that the defendant was not the mortgagee. Possibly the defendant was the agent of the mortgagee. When the defendant made the advances to the builder, it did so with its own checks drawn against its own funds. If the mortgagee had forwarded to the defendant the money which it paid to the builder, no witness mentioned the fact.
Mr. Paulson gave the following testimony:
In other words, the fact that the mortgages were recorded was the sole evidence upon which the defendant relied to charge the plaintiff with notice of the defendant's interest. But if the records has been consulted they would not have disclosed that the defendant was the mortgagee; they would have shown that the holder of the mortgages was the Sun Life Insurance Company.
Before Petrehn had completed construction of the houses he found it necessary to withdraw from the undertaking, and on April 2, 1948, he and his wife conveyed the 16 properties to one C.F. Gillette, who continued the construction work. Gillette finally completed the houses, but before he had sold any of the houses he met with financial difficulties. January 4, 1949, Gillette conveyed the properties to the defendant. The account mentioned in the complaint was incurred in June, 1948, while Gillette was proceeding with the construction project.
According to uncontradicted evidence, Mr. Miller visited the defendant's shop many times while the work upon the houses was in progress. The visits began when Petrehn was in charge of the project. When Petrehn found it necessary to abandon the undertaking and convey the properties to Gillette, Mr. Miller brought Gillette to the plaintiff and made the two acquainted. According to the plaintiff's uncontradicted testimony, Miller at that time said that "we were to take over, under Gillette's supervision." By "we" reference was made to the plaintiff. Going on, the plaintiff attributed to Miller the following directions: "We should go ahead and work it under Gillette the *271 same as we had under Pethren." We quote further from the plaintiff's testimony:
Although the plaintiff, in his above-quoted testimony, spoke of 1949, it is clear that he meant 1948.
As is evident from the foregoing, the plaintiff, from the time that the construction of the houses was begun, *272 sent monthly statements of the account to the defendant, and received from the defendant remittances for the sums owing. The statements entered as the debtor the name of the defendant. Mr. Miller was aware of the statements and of the fact that they entered as debtor the defendant. Payment of the statements was made, as we have said, with the defendant's checks drawn against its bank account and signed by Mr. Miller. During his visits to the plaintiff's shop, Mr. Miller made no objection to the fact that the statements were issued in the defendant's name. If he ever commented upon the fact that the statements entered the defendant's name as debtor and were mailed to it, the incident was not divulged during the trial.
The plaintiff swore that he was unfamiliar with the condition of the title to the 16 properties. He gave the following testimony:
When the defendant received the monthly statements, it sent its check in the required amount to the plaintiff. It appears that upon at least one occasion the plaintiff sent to Gillette a statement similar to the one which it had sent to the defendant, but in it inserted Gillette's name as the debtor. The plaintiff *273 explained that occurrence by stating that since he was paid monthly upon a basis of total work done and the amount of materials installed, it was necessary to secure Gillette's approval before forwarding the monthly statement to the defendant.
The plaintiff completed the plumbing work and when the house represented by the account in litigation was fully constructed, the balance was owing to the plaintiff for which the challenged judgment was entered.
Apart from minor details, the above reflects the facts developed upon the trial.
We shall now consider the first assignment of error. In its support the defendant-appellant presents the following single proposition: "The evidence is not sufficient to show that appellant requested that such materials be furnished and such services performed."
The plaintiff's bookkeeper, Margaret Cody, prepared the two ledger sheets which constitute the subject matter of the first assignment of error. The ledger sheets are of the familiar kind. At the top of the sheets with which this case is concerned Miss Cody wrote as the name of the debtor "State Finance Company". Under that name are ruled columns which are headed by these titles: Date, Folio, Debit, Credit, and Balance. In those columns Miss Cody made entries. She swore that she made them from the daily invoices and that she did so whenever new items appeared.
Section 2 of the Uniform Business Records as Evidence Act [ORS 41.690] reads as follows:
1-3. We believe that the evidence which was before the trial judge when he overruled the defendant's objections to the two ledger sheets complied with the requirements of the section of our laws just quoted. Account books are original evidence and are not excluded because other evidence of the facts revealed by them is available: Radke v. Taylor, 105 Or 559, 210 P 863, 27 ALR 1423. During the argument before this court the defendant urged that the entry in a ledger sheet of the name of the purported debtor is inadmissible for the purpose of proving that the person charged was, in fact, the debtor. We think that the words of the act above quoted refute that contention. See, also, Ziliak v. Schafer Milling Co. v. Moore, 222 Ala 254, 131 So 798; Douglas v. Parker Commercial Co., 28 Ariz 47, 235 P 148; MacFayden v. Paul, 102 Conn 243, 128 Atl 650; Haygood v. E.B. Clark Co., 27 Ga App 101, 107 SE 379; Sneider v. Big Horn Milling Co., 28 Wyo 40, 200 P 1011; James C. Goff v. Lunn, 48 R I 416, 137 Atl 879. According to our belief, the plaintiff presented sufficient evidence to show that the defendant requested the plaintiff to supply the materials and labor which constituted the subject matter of the charge. The court did not err when it overruled the defendant's objections to the two ledger sheets. This assignment of error is without merit.
We turn now to the second and third assignments of error. They are quoted in a preceding paragraph and are based, respectively, upon the denials of the motions for a nonsuit and a directed verdict. In support of those assignments of error, the defendant contends, *275 as we have already stated, that before it could be liable for the labor and material which the plaintiff furnished, the evidence must indicate (a) "a contract, express or implied, proof of either a contract made by the parties or facts creating a liability by implication of law" or (b) "a request for performance of such labor and furnishing of such materials by the party sought to be charged."
The review of the evidence which is set forth in preceding paragraphs shows, according to our belief, that the defendant ordered the plaintiff to perform the plumbing work for which the contested charge was made. The first order was given by the defendant when construction of the houses was begun. Later, when Petrehn quit the project and Gillette succeeded him, the order was repeated. While the work was in progress monthly statements, showing the condition of the account, were mailed to the defendant. These statements, as we have shown, contained the defendant's name as debtor. Based upon them, the defendant regularly made remittances with its own check, drawn against its own funds and signed by Mr. Miller, its executive head. Mr. Miller visited the plaintiff in the latter's shop frequently and, although in those visits the work and the statements were mentioned, no intimation was ever made that the defendant was not the debtor and that the statements should not contain its name as the party liable for the account.
4. Obviously, it was unnecessary for the defendant to own the houses in order to be liable for the work which it directed the plaintiff to perform. When the defendant ordered the plaintiff to install the plumbing in the houses, it rendered itself liable, not in a secondary capacity, but as the original and primary debtor. In Eilertsen v. Weber, 198 Or 1, 255 P2d 150, we recently *276 considered and set forth the principles of law which govern situations such as the one now before us. We need not repeat those principles herein. They support the plaintiff's claim. It is our belief that the second and third assignments of error lack merit.
The above disposes of all the contentions presented by the appellant. The judgment of the circuit court is affirmed. | 16bb2dc67d63274f5d669c4c3ef8b4e1d7e1e4807c35f83139d1d47a197774b7 | 1954-10-06T00:00:00Z |
0d801943-5950-42b0-9ee6-8ff2e21f417b | Gordon Sayre Little v. Gladden | 202 Or. 16, 273 P.2d 443 | 30658 | oregon | Oregon Supreme Court | Reversed with directions August 2, 1954.
*17 Merlin Estep argued the cause for appellant. On the briefs were Hewitt, Estep & Sorensen, of Salem.
*18 Lloyd G. Hammel, Assistant Attorney General, of Salem, argued the cause for respondent. With him on the brief was Robert Y. Thornton, Attorney General, of Salem.
Before LATOURETTE, Chief Justice, and LUSK, BRAND and TOOZE, Justices.
REVERSED WITH DIRECTIONS.
LUSK, J.
Gordon Sayre Little, a prisoner in the Oregon state penitentiary, filed a petition for a writ of habeas corpus in the Circuit Court for Marion County. The writ was issued, the case put at issue, and after a hearing the court entered an order dismissing the proceeding and remanding the prisoner. Plaintiff has appealed.
It appears from the record that the plaintiff on March 27, 1943, was sentenced by the Circuit Court for Marion County to serve five years in the penitentiary on a conviction of burglary with credit for time served in the county jail. The number of this case was 30658. On the same day the plaintiff was sentenced by the same court to serve three years in the penitentiary on a conviction of forgery, such sentence to commence at the expiration of the five-year term in Case No. 30658. The number of the forgery case was 30650. On April 16, 1943, the district attorney for Marion County filed an information in that court under the Habitual Criminal Act charging the plaintiff with having committed seven felonies. Two of these were the burglary and forgery convictions just mentioned. The other five were prior convictions, the first and second in Oregon, the third and fourth in Arizona, and the fifth in Idaho. The number assigned to this proceeding was 30723.
*19 There was a jury trial on the charges set forth in the information under the Habitual Criminal Act. The jury found that the plaintiff was the same person who had been convicted of the felonies enumerated, and thereupon the court entered judgment as follows:
The return of the warden of the penitentiary to the writ of habeas corpus averred that his authority, and the cause of plaintiff's imprisonment, were the three sentences of the Circuit Court for Marion County above described, to wit, the five-year sentence for burglary, the three-year sentence for forgery, and the life sentence in the habitual criminal case.
1-3. It is contended by the plaintiff that the life sentence is void because it is a sentence for a nonexistent crime. We have repeatedly held that the Habitual Criminal Act creates no new offense but merely provides a proceeding by which to determine the penalty to be imposed on one previously convicted of a crime. Castle v. Gladden, 201 Or 353, 270 P2d 675, and cases cited. In other words, it is not a crime to be an habitual criminal. It is, rather, a status which makes one convicted *20 of a felony liable to a heavier penalty than the law, but for the proof of that status, would authorize. In the case of one who has been four times convicted of felonies that penalty, under the statute in effect in 1943, was life imprisonment. OCLA § 26-2803. The procedure for determining whether the increased penalty must be imposed is set forth in OCLA § 26-2804. When it is found, in accordance with that procedure, that a person convicted of a felony had theretofore been convicted of three other felonies, the mandatory penalty for the fourth offense is life imprisonment. (It, of course, makes no difference that, as in this case, there are more than three previous felony convictions.) The proceeding in which that determination is made is simply a continuation of the case in which the defendant had previously been found guilty of a fourth felony. Borders v. Alexander, 183 Or 488, 493, 194 P2d 414. And, where a penalty under the statute prescribing the specific punishment for that offense has been imposed, the sentencing judge is required to "vacate the previous sentence, deducting from the new sentence all time actually served on the sentence so vacated." In this case there were two convictions on either one of which the plaintiff might have been sentenced to life imprisonment under the Habitual Criminal Act. These were the convictions of burglary and forgery, both on March 27, 1943. The former was the sixth and the latter the seventh conviction. It is impossible to determine from this record whether the sentence of life imprisonment was for burglary, forgery, or either. Had either of the previous sentences been vacated the difficulty might not be here, but the court neglected to comply with that direction of the statute. Nor does the language of the sentence give us any light. It recites "that defendant, Gordon Sayre *21 Little, has been convicted of seven felonies" and adjudges that he "is guilty of violation of the Habitual Criminal Act", and orders him confined in the state penitentiary for the balance of his natural life. For all that appears the sentence imposed was, as the judgment states, for a violation of the Habitual Criminal Act by the commission of seven felonies and not for the crime of burglary or the crime of forgery. The case numbers of the various proceedings add to the difficulty. The burglary and forgery prosecutions, and the habitual criminal proceeding, each bear separate numbers. This fact "suggests, though it may not conclusively prove, that the information was treated as a charge of a separate offense". Broom v. Alexander, 198 Or 551, 559, 255 P2d 1081. In Borders v. Alexander, supra, it was argued that the judgment in an habitual criminal proceeding was "based upon previous convictions of felonies" and not upon the crime of forgery of which the prisoner had been last convicted. It appeared in that case that a sentence of five years in the penitentiary for forgery, a third felony conviction, had been pronounced by the court, and afterwards that an information under the Habitual Criminal Act was filed, and that the court entered a judgment in that proceeding which recited that the defendant was the same person "previously convicted of felonies" charged in such information and sentenced him to ten years in the penitentiary. We held that while the judgment was "loosely drawn and somewhat ambiguous" yet it sufficiently appeared that the ten-year sentence was imposed for the crime of forgery and not for the crime of being an habitual criminal, which is no crime at all. In arriving at that conclusion we applied the established rule that the objection to a sentence on the ground that it does not state or does not sufficiently *22 describe the offense of which the defendant was found guilty, or that the defendant was guilty of any named crime, is technical rather than substantial, and that the whole record may be looked to for the purpose of supplying a deficiency at a particular place. If "the record shows everything necessary to justify the punishment inflicted" that is sufficient. Pointer v. United States, 151 US 396, 38 L ed 208, 14 S Ct 410. One of the controlling facts in the Borders case was that the court, in compliance with the requirement of the statute, vacated the previous sentence, thus clearly indicating the intention that the new sentence was imposed as punishment for the crime of forgery for which the previous sentence had been imposed. In addition, the record in the Borders case shows that there was only one crime for which a sentence under the Habitual Criminal Act could have been passed. In the case before us, as already stated, the plaintiff had been convicted of two crimes, for either one of which the court could have imposed a life sentence under the Habitual Criminal Act. Neither of the sentences for those crimes was vacated. The language of the habitual criminal judgment itself indicates an intention to impose sentence for the "crime" of being an habitual criminal, and there is no evidence anywhere else in the record of a different intention.
It follows that the sentence of the plaintiff to life imprisonment is void. The previous sentences of five years for burglary and three years for forgery have been completely served, and it remains to determine whether the plaintiff is entitled to be granted an outright release.
Although the sentence is void, all the proceedings leading up to it are valid. The plaintiff finds no fault with them except in one particular to be mentioned *23 later. He was legally convicted of burglary, legally convicted of forgery, and legally found to be a person who had committed seven felonies. Under the statute then in force it became the mandatory duty of the judge to impose a sentence of life imprisonment for one or the other of the two felonies of which the plaintiff was convicted on March 27, 1943. That duty was neglected either through inadvertence or misinterpretation of the law.
4. In a series of recent habeas corpus cases in the state of Washington the Supreme Court of that state found it necessary to declare void sentences based upon a finding that the defendant was "guilty of the crime of habitual criminal". There is no such crime in Washington, and the sentences were held to be, not merely erroneous, but absolutely void. Nevertheless, the court ordered the petitioners returned to the sentencing courts so that proper sentences might be imposed. See, Blake v. Mahoney, 9 Wash2d 110, 113 P2d 1028; In re Cress, 13 Wash2d 7, 123 P2d 767; In re Towne, 14 Wash2d 633, 129 P2d 230; In re Richardson, 16 Wash2d 709, 133 P2d 810; Lee v. Cranor, 38 Wash2d 831, 233 P2d 535. In the Towne case the court, speaking through Steinert, J., summed up the situation thus: "Petitioner's status is, therefore, that of a convicted criminal who has not yet been properly sentenced." It was the view of the Washington court that in that posture of affairs the convicted criminal should not be set free, but that he should be properly sentenced. In the Cress case the court cited, among other authorities, In re Bonner, 151 US 242, 14 S Ct 323, 38 L ed 149, a habeas corpus proceeding in which it appeared that the prisoner had been sentenced to imprisonment in the penitentiary for one year. The part of the sentence designating the penitentiary as the place of confinement *24 was void. The court, in an opinion by Mr. Justice Field, discussed the propriety of the practice, in cases where the only defect in the proceeding was in the sentence, of permitting the original court to "set aside what it had no authority to do and substitute directions required by the law to be done upon the conviction of the offender." The court then said:
The Supreme Court of the United States found authority for such a course in § 761 of the Revised Statutes. That section has its counterpart in the following *25 provision of our habeas corpus statute, ORS 34-670:
The order in the Bonner case read:
Similar orders were made in the Washington cases cited under the authority of a statute which the court construed as having the same effect as § 761 of the Revised Statutes.
In Huffman v. Alexander, 197 Or 283, 329, 251 P2d 87, 253 P2d 289, we spoke of "the recent flood of litigation flowing from behind prison walls". Where such litigation involves only procedural defects of the kind present in this case where the court had the right to take cognizance of the alleged offense (In re Bonner, supra) and no claim is made of unfairness in the trial or injustice in the verdict, or that the prisoner's constitutional rights were invaded it is highly important today for the protection of society that the courts adopt as a principle of decision the rule of the *26 Bonner case, for, as Mr. Justice Field said in the opinion in that case, "The judges of all courts of record are magistrates, and their object should be not to turn loose upon society persons who have been justly convicted of criminal offenses, but, where the punishment imposed, in the mode, extent, or place of its execution, has exceeded the law, to have it corrected by calling the attention of the court to such excess."
It will be objected that it is now too late to impose a proper sentence under the Habitual Criminal Act since the sentences on both the burglary and forgery charges have been served, and therefore neither can be vacated as the statute requires to be done. We so held in Broom v. Alexander, supra. We have been urged to re-examine the grounds of that decision and think it proper that we do so.
The controlling statute is OCLA § 26-2804. We quote it in full, italicizing language deemed to be particularly important:
We reasoned in the Broom case opinion that the information should be filed before the original sentence had been fully served, otherwise the statute would not provide that the court should vacate the previous sentence.
We referred to certain language in Macomber v. State, 181 Or 208, 180 P2d 793, as indicating approval of the construction adopted, and also to State v. Moore, 192 Or 39, 233 P2d 253, as having been decided on the basis of that construction. But the question decided in the Broom case was not in the Macomber case, and while in the Moore case we were at some pains to show that the habitual criminal information was filed before the previous sentence had been fully served, we neglected to point out what the record discloses that the new sentence was not imposed and the previous sentence was not vacated until after that sentence had been fully served.
The question came before the Appellate Division *28 (Third Dept.) of the Supreme Court of New York in People ex rel. Fernandez v. Kaiser, 230 App Div 646, 246 NYS 309. The court held that where a person had been convicted of a felony and fully served the sentence, and afterwards it was discovered that he had, previous to such conviction, been convicted of other felonies, the sentencing court had the power, on proof of such convictions, to vacate its prior sentence and sentence the defendant again as a second offender. Concerning § 1943 of the New York Penal Law, which is identical with OCLA § 26-2804, the court said:
This involved, the court held, no violation of the constitutional guaranty against double jeopardy. The judgment of the appellate division was unanimously affirmed by the Court of Appeals without opinion, 256 NY 581, 177 NE 149, and certiorari was denied by the Supreme Court of the United States, 284 US 631, 76 Led 537, 52 S Ct 16. This decision was followed in Ohio and Louisiana, whose statutes are patterned after *29 those of New York. State v. Sudekatus, 72 Oh App 165, 51 NE2d 22; In re Sims (Oh App) 104 NE2d 193; State v. George, 218 La 18, 48 So2d 265.
We took our Habitual Criminal Act from the Baumes Laws of New York, and therefore the decisions of the New York court construing the law have more than ordinarily persuasive force with this court. Castle v. Gladden, supra; Macomber v. State, supra. Apart, however, from the question of judicial authority elsewhere, we are forced to the conclusion, after a careful re-examination of the question, that we fell into error in the Broom case by failing to give full effect to the legislative direction that a proceeding under the Habitual Criminal Act may be commenced by filing an information "at any time, either after sentence or conviction", and whether the person is "confined in prison or otherwise". The statutory language must be taken to mean what it says, and a limitation cannot properly be placed on the command and authorization of the legislature where the legislature has placed none. In a word, we think that the legislature neither said nor intended that an information might be filed at any time either after sentence or conviction, provided the person informed against had not fully served the previous sentence, and therefore that the court may not add this proviso to the statute. Insofar as the Broom case conflicts with these views it must be deemed overruled.
Though the vacation of a sentence which has been fully served may be a mere formality, it is certainly not something beyond the power of the legislature to require. In a case like this, it would at least serve the purpose of identifying the crime to which the new sentence was intended to apply. And, in any case of a fourth felony conviction, vacation of a previous sentence *30 is little more than a formality. The requirement of deduction of time served is then of no importance. State v. Sudekatus, supra. The sentence of imprisonment for life is mandatory, and the order of vacation amounts to little more than a formal record of the fact that the previous sentence has been supplanted by the only sentence which the law then recognizes. In Commonwealth ex rel. Dugan v. Ashe, 338 Pa 541, 13 A2d 523, the court answered the objection that a previous sentence had not been vacated, as required by the Habitual Criminal Act of Pennsylvania, by saying:
If such an objection can be so readily disposed of we see no reason, constitutional or otherwise, why the court which imposed sentence in this case may not correct what it did wrongly by now entering an order of vacation of either the sentence for burglary or the sentence for forgery passed on March 27, 1943, and imposing the mandatory life sentence in place of the sentence so vacated.
5. It is contended that the court erred in sustaining an objection by the defendant to the following question put to a witness called by the plaintiff:
*31 We held in Castle v. Gladden, supra, that such knowledge in no way affects the jurisdiction of the court to pass sentence in a subsequent habitual criminal proceeding. Apart from that, there was no offer of proof. The question called for a mere conclusion of the witness, and the record fails to show that he would be able to give competent testimony upon the subject. The assignment of error is without merit.
It follows from the views hereinabove expressed that the judgment of the Circuit Court must be reversed, and it is ordered that the plaintiff is entitled to a writ of habeas corpus, but that its issuance be stayed for a period of 30 days to afford the proper state officers opportunity to have the plaintiff returned to the Circuit Court for Marion County for sentence in accordance with law. | 043f9b4bead101091a65e86ede9faee80fa3fb425354646a96b49286167c4535 | 1954-08-02T00:00:00Z |
73688118-937e-49f3-a96d-e7851fb0f906 | Castle v. Gladden | 201 Or. 353, 270 P.2d 675 | null | oregon | Oregon Supreme Court | Affirmed May 19, 1954.
*355 Merlin Estep argued the cause for appellant. On the briefs were Hewitt, Estep & Sorensen, of Salem.
Howard R. Lonergan, Assistant Attorney General, *356 of Portland, argued the cause for respondents. With him on the briefs were Robert Y. Thornton, Attorney General, and Lloyd G. Hammel, Assistant Attorney General, of Salem.
Before LATOURETTE, Chief Justice, and ROSSMAN, LUSK, BRAND, TOOZE and PERRY, Justices.
AFFIRMED.
LUSK, J.
This is an appeal by the plaintiff from a judgment of the Circuit Court dismissing a proceeding in habeas corpus and remanding the plaintiff to the custody of the warden of the Oregon state penitentiary.
The return to the writ averred that the plaintiff, Claude Castle, was and had been a prisoner in the penitentiary since July 24, 1941, by virtue of an arraignment and a judgment of the Circuit Court of the State of Oregon for the County of Polk dated July 24, 1941, a copy of which is attached to the return and which discloses that he was on that day sentenced to be imprisoned in the penitentiary for the term of his natural life under the Habitual Criminal Act upon a plea of guilty to an information charging that he had been theretofore convicted of four felonies.
Plaintiff filed a second amended traverse of the return in which he denied "that the authority for the custody and the direct cause of the imprisonment of Claude Castle" was the judgment and life sentence under the Habitual Criminal Act, except as thereafter admitted or alleged; and affirmatively alleged that his imprisonment was illegal for the following reason, among others:
The traverse sets up a copy of the habitual criminal information which shows the following convictions of the plaintiff for felony: March 24, 1930, conviction in the Supreme Court of New York of the crime of rape, second degree; December 16, 1936, conviction in the Circuit Court of the State of Oregon for Marion County of the crime of uttering a forged instrument; October 26, 1937, conviction in the Circuit Court of the State of Oregon for Coos County of the crime of uttering a forged instrument; July 24, 1941, conviction in the Circuit Court of the State of Oregon for Polk County of the crime of larceny of livestock.
The traverse further alleges that the conviction in Coos County dated October 26, 1937, being the third of the above enumerated convictions, was for a crime committed on November 28, 1936, which was prior to the date of the second conviction, December 16, 1936, and that hence the plaintiff has not been convicted of four felonies within the meaning of the Habitual Criminal Act; that at the time of plaintiff's conviction and sentence upon the fourth felony charge both the sentencing court and the district attorney knew of all the convictions alleged in the habitual criminal information; that after his imprisonment in the penitentiary the prison authorities prevented his communicating with his legal counsel and so prevented his appealing to the Supreme Court of Oregon.
A demurrer to the traverse was sustained by the *358 court and the questions on this appeal arise out of that ruling.
The statute which governs this case is found in OCLA §§ 26-2801 to 26-2804. It was repealed by Oregon Laws 1947, ch 585, and a new statute enacted, which is now ORS 168.010 to 168.060. OCLA § 26-2803 prescribed a penalty of life imprisonment upon conviction of a fourth felony. The language of this section will be more particularly noticed when we come to consider another contention of the plaintiff. Section 26-2804 was a procedural section. It provided that when a defendant had been convicted of a felony and it was subsequently found that he had been previously convicted of felonies "the court shall sentence him to the punishment hereinabove provided [in this instance, life imprisonment], and shall vacate the previous sentence, deducting from the new sentence all time actually served on the sentence so vacated." (Italics added.) According to the allegations of the traverse the three-year sentence imposed for the fourth felony has never been vacated and the plaintiff has fully served that sentence. His claim is that the court's failure to vacate the previous sentence rendered the sentence of life imprisonment illegal and void, leaving the three-year sentence previously imposed as the only valid sentence, and, as that has been fully served, he is entitled to his discharge.
The contention has support in Broom v. Alexander, 198 Or 551, 255 P2d 1081. That was a habeas corpus proceeding in which the Circuit Court for Marion County had ordered the discharge of Broom, the plaintiff. Pending the appeal from that judgment and before the case was at issue here, the superintendent *359 of the penitentiary, defendant in the habeas corpus proceeding, filed a motion in this court for an order authorizing him to remove the prisoner to the sentencing court, the Circuit Court for Polk County, in order that the record might be corrected. It appeared that Broom had been convicted of statutory rape in Polk County and sentenced to ten-years imprisonment, that thereafter he had been sentenced by the same court to life imprisonment as an habitual criminal but that the previous sentence of ten-years imprisonment had never been vacated, and the correction of the record sought to be made was the vacation of that sentence in accordance with the requirement of OCLA § 26-2803. The motion was met by the contention of the prisoner that the court was without power to allow it because he was entitled to his freedom as a result of the judgment of discharge of the Circuit Court for Marion County. He urged that the appeal did not stay the execution of the judgment, and this was the question argued in the briefs supporting and opposing the allowance of the motion. Upon an examination of the record, however, the fact was disclosed that the prisoner had already served ten years in the penitentiary, and we denied the motion on the ground that the habitual criminal sentence was void because the sentence of ten years in the penitentiary had not been vacated, and that was the only valid sentence and it had been fully served. We further held that a sentence that had been fully served could not be vacated. In this view we concluded that the appeal had become moot and should be dismissed and that the prisoner was entitled to his discharge.
1. The Attorney General earnestly argues that the Broom case was wrongly decided and that we should *360 re-examine the grounds of our judgment and overrule it. The record in this case, however, discloses a fact which was not present in the Broom case and which is controlling, regardless of the criticism of that decision. The second amended traverse alleges:
The foregoing allegations are admitted by the defendant's demurrer.
2. It is the plaintiff's contention that the court's knowledge of the prior convictions, when it imposed the three-year sentence for the principal offense of larceny of livestock upon the fourth conviction, deprived the court of jurisdiction to impose the sentence of life imprisonment prescribed by the Habitual Criminal Act. We think that the result is directly the opposite, that in those circumstances the court lost power to pass the original sentence and was charged with the mandatory duty to impose a sentence of life imprisonment.
3, 4. As this and other courts have frequently said, the Habitual Criminal Act creates no offense, but merely provides a proceeding to determine the penalty to be imposed on the main charge. Broom v. Alexander, supra, p. 559, and cases cited. The increased penalty, where the fact of previous conviction is established, is mandatory. Macomber v. State, 181 Or 208, 218, 180 P2d 793. As stated by the Court of Appeals of New York in Dodd v. Martin, 248 NY 394, 399, 162 *361 NE 293, "The Legislature has provided a mechanistic rule to take the place of the discretionary powers of the judge in passing sentence on second offenders". Under OCLA § 26-2804 an information accusing a person of previous convictions may be filed "at any time, either after sentence or conviction." It is the duty of the district attorney to file such an information when his attention is called to such previous convictions, and the duty of prison wardens, probation, parole, police or other officers who know that a person charged with or convicted of a felony has been previously convicted to report the facts to the district attorney of the county from which he was sentenced. Upon filing of the information "the court in which such conviction was had shall cause the said person, whether confined in prison or otherwise, to be brought before it" for a hearing, and, if he be found to be the person who had been previously convicted, as charged in the information, the court must impose sentence as provided in the Act and vacate the previous sentence, if one has already been passed, deducting from the new sentence time actually served on the vacated sentence.
5, 6. We took our Habitual Criminal Act from the Baumes Laws of New York, and the New York decisions are for that reason "peculiarly pertinent". Macomber v. State, supra, 181 Or 242.
The New York Court of Appeals, in two decisions which are reviewed at length in the Macomber case, has passed directly on the question before us. In Dodd v. Martin, supra, the court held that a sentence as a first offender of one known to the court to be a second offender was illegal. The court said:
There is a like holding in People v. Daiboch, 265 NY 125, 191 NE 859. The court of appeals there said:
Although the question in the Macomber case related to the effect of the knowledge of the district attorney of the commission of prior offenses at the time of passing of sentence on the principal charge, yet we cited the New York cases with full approval, concluding our discussion of them with this statement:
The New York decisions are in entire accord with our holding in State v. Durham, 177 Or 574, 164 P2d 448, 162 ALR 422. The defendant there was convicted of a felony, and before sentence an information charging him as a fourth offender was filed. This charge having been established in a jury trial, the court then sentenced the defendant to life imprisonment. On appeal to this court the defendant assigned as error the refusal of the Circuit Court to sentence him on the principal charge before proceeding with the habitual criminal charge. Speaking through Mr. Chief Justice BELT, we said:
Of course, the knowledge of the court must be such as it acquires as a court and in the course of judicial proceedings and upon the strength of which the court is warranted in acting or refraining from acting. In the Dodd case the court was advised of the previous offense by an allegation in the indictment, a practice permissible under New York law. In the Daiboch case the knowledge was acquired during proceedings in court at the time that the defendant was sentenced upon the original charge. The present case must be decided upon pleadings only. We have the allegation, admitted to be a fact, that "the court * * * was fully advised and informed" of the prior convictions, etc. It is not alleged in what particular manner the knowledge came to the court. As the entire proceeding the conviction and sentence on the principal charge, the filing of the information, and the sentence as an habitual criminal took place on the same day, it may very well have been acquired by the court during the proceedings upon the indictment charging the fourth felony. However that may be, in the absence of a motion to make more definite and certain the allegation is sufficient for the purpose for which it was manifestly intended, namely, to charge that the court, as a court, was informed and knew of the prior convictions at the time it passed the original sentence.
*364 7. This being the state of the case, we hold that the original sentence was illegal, that it became the mandatory duty of the court, after the fact of previous convictions had been admitted by plaintiff, to impose the sentence of life imprisonment, which was the only valid sentence, and that the plaintiff's confinement in the penitentiary is pursuant to that sentence, and not otherwise. The failure of the court, therefore, "to vacate the previous sentence" is a matter of no consequence in the circumstances of this case.
8. We have stated that the third conviction of the plaintiff was for a crime committed before he was convicted the second time. The plaintiff contends that the statute, properly construed, means that a person may not be adjudged a fourth offender, and therefore liable to life imprisonment, unless the second conviction was of a crime committed after the first conviction, and the third conviction was of a crime committed after the second conviction and the fourth conviction of a crime committed after the third conviction. We do not agree with this contention because the statute says otherwise. We refer now to the pertinent sections of OCLA.
It is, of course, quite clear, under the language of § 26-2801, that the penalty for a second conviction may only be imposed for a felony committed after a first conviction. As to the construction of § 26-2802, concerning which there is dispute, we need express no opinion. Section 26-2803 is unambiguous. It simply says that a person who commits and is convicted of a felony after having been three times convicted of felonies shall be sentenced to life imprisonment. The only "sequence" requirement in the section is that there must have been three previous convictions of felonies without regard to any particular order of offense and conviction. To sustain the plaintiff's contention, *366 therefore, it would be necessary to read into the statute a provision to the effect that the previous felonies, in order to be counted, must each have been committed after a prior conviction. We do not feel warranted in taking such liberties with the language of the statute, notwithstanding the fact that some other courts seem to have done so in construing similar language. The theory upon which they have proceeded is thus stated in the annotation in 24 ALR2d 1247 at p. 1248:
Conceding that the foregoing is a correct statement of the theory behind habitual criminal legislation, it still remains true that it may very well have been the view of the legislature of this state that a person who has been three times convicted of felonies, regardless of the order of commission and conviction, and afterwards has "sinned again", is to be deemed incorrigible, and, for that reason and for the protection *367 of society, to have merited imprisonment for life. Certainly the legislature has expressed no different policy. Moreover, there has been a significant change in the law which reenforces this conclusion. The first habitual criminal act in this state was General Laws of Oregon 1921, ch 70. It read as follows:
When the 1921 Act was repealed and the statute governing this case was adopted in 1927 (General Laws of Oregon, ch 334) the last proviso in the 1921 Act, which we have italicized, was omitted from the new law. Instead, the legislature, in enacting what became OCLA § 26-2803, adopted the exact language of § 1942 of the New York Penal Law. See McKinney's Consolidated Laws of New York, Book 39, Part 2, Penal Laws § 1942 (1944). In Terwilliger v. Turk, 156 Misc 246, 281 NYS 527, the Supreme Court of New York, having before it the precise question with which we are now dealing, construed the statute to mean that the order of commission and conviction of the first three offenses is immaterial on the question of whether the defendant is a fourth offender. The court said:
Other New York cases enunciating the same rule are People ex rel Terwilliger v. Brophy, 256 App Div 894, 9 NYS2d 25; People ex rel Bravata v. Morhous, 273 App Div 929, 77 NYS2d 451; People ex rel Reynolds v. Morhous, 268 App Div 843, 50 NYS2d 272; Terwilliger v. Eaton, 164 Misc 776, 299 NYS 351; People v. Gorney, 203 Misc 512, 103 NYS2d 75.
Counsel for plaintiff undertake to distinguish the New York cases on the ground that, as it is claimed, the New York statute, in contrast to the Oregon statute, "makes no distinction whatever as to time sequence between a second and a third conviction." But the New York decisions do not turn upon the question of sequence as between the earlier convictions. The construction in the Turk case was based upon the language of the fourth-offender statute, although the court did call attention to the distinction which emphasizes the legislative intent, namely, that, while to make a defendant a second offender the commission of the second offense must follow his first conviction, there is no similar requirement as to fourth offenders.
9, 10. This is equally true of our statute. We are of the opinion that we should follow the New York precedents. The same rule of construction under a similar statute appears to have been adopted in Pennsylvania. See Commonwealth ex rel. Dugan v. Ashe, 338 Pa 541, 13 A2d 523; Commonwealth ex rel. Turpack v. Ashe, 339 Pa 403, 15 A2d 539. See, also, State v. McCall, *369 27 NJ Super 157, 99 A2d 153. The decisions to the contrary, some based on statutes like ours and others on statutes containing different language, are collected in the annotation in 24 ALR2d 1247. Nothing is to be gained by reviewing them here. Our conclusion, after a careful consideration of the question, is that the plain language of our statute requires us to hold that in order for a person to be adjudged a fourth offender it is only necessary that it be shown that, before the commission and conviction of the principal offense, he had been three times convicted of felonies.
11, 12. It is contended that the third-offender provision of the statute, OCLA § 26-2802, is unconstitutional. It is unnecessary for us to pass upon this question for this case does not involve application of that section. We deal here only with a penalty for life imprisonment imposed on the plaintiff by authority of § 26-2803. As we have held, conviction of a fourth felony committed after three previous felony convictions is all that is needed to bring into play the mandatory provisions of § 26-2803. There is no requirement that the offender must have been previously convicted as a second offender and as a third offender. And, even though § 26-2802 were declared unconstitutional, the remainder of the statute would remain unaffected under "the fundamental principle that a statute may be constitutional in one part and unconstitutional in another part and that if the invalid part is severable from the rest, the portion which is constitutional may stand while that which is unconstitutional is stricken out and rejected." 11 Am Jur 834, Constitutional Laws, § 152. We are not to be understood as holding or intimating that § 26-2802 is unconstitutional, but merely that, if *370 it be so, the rest of the statute is severable from it and would stand, since the part claimed to be invalid cannot be regarded as an inducement to the valid portion. See Fullerton v. Lamm, 177 Or 655, 696, 697, 163 P2d 941, 165 P2d 63, and Oregon cases there cited.
13. The only other question that need be noticed arises upon the claim of the plaintiff that he was deprived of the right of appeal by the wrongful acts of the penitentiary officials who, it is charged, prevented him from communicating with his counsel. It is not contended that there were any errors in the proceedings other than the alleged errors set forth in the traverse and which we have discussed. Indeed, for all that appears, the conviction of the fourth offense may have been on a plea of guilty. In any event, we are not advised by the record of any irregularity or ruling prejudicial to the rights of the plaintiff which would have constituted ground for a reversal of the judgment. It is clear, therefore, that an appeal would have availed the plaintiff nothing, and, that being the case, the court would not be warranted either in ordering the discharge of the plaintiff or in granting him the right to a delayed appeal. See the discussion of this question in Huffman v. Alexander, 197 Or 283, 324-327, 251 P2d 87, 253 P2d 289.
For the foregoing reasons the judgment of the Circuit Court dismissing the proceedings and remanding the plaintiff is affirmed. | 5137dfd5f7d133ec9cb479a0fa2999b619c452c5b61447966b7b52a346cda455 | 1954-05-19T00:00:00Z |
cba859dc-fc2c-428f-801e-50860208fb10 | Marston v. Myers | 201 Or. 259, 270 P.2d 147 | null | oregon | Oregon Supreme Court | Reversed and remanded May 5, 1954.
*260 Jos. M. Devers, Jr., of Stayton, argued the cause for appellant. On the brief were Bell & Devers, of Stayton, and Rhoten, Rhoten & Speerstra, of Salem.
John H. Carson, of Salem, argued the cause and filed a brief for respondents and cross-appellants.
Before LATOURETTE, Chief Justice, and ROSSMAN, TOOZE and PERRY, Justices.
REVERSED AND REMANDED WITH INSTRUCTIONS.
PERRY, J.
This is a suit brought by the plaintiff wherein she seeks to have the defendants declared trustees of certain real property for her benefit, and asks for an accounting for the proceeds received by defendants from the sale of timber upon one parcel of land and from the sale of other parcels of land.
The plaintiff's complaint sets forth that Albert R. Myers, a brother of the plaintiff and of the defendant Joseph I. Myers, in his lifetime conveyed the real property in question to the plaintiff; that after the death of Albert R. Myers the plaintiff transferred and conveyed the real property to the defendants for the purpose of having the defendants sell and dispose of the property advantageously for the plaintiff, and after the payment of the expenses of the sale, to return the proceeds to the plaintiff; that the defendants had sold some of the real property and a considerable amount of timber, but had not accounted to the plaintiff for the proceeds thereof. The prayer of the complaint requested a decree *261 of the court declaring defendants trustees of the real property and of the moneys derived from the sale of portions thereof and from the sale of the timber for the benefit of plaintiff, and requiring an accounting to be had. The defendants filed a general denial.
Thereafter the trial was had and the court rendered its decree as follows:
From this decree the plaintiff has appealed as to that portion of the decree which denies that she is the beneficiary of the trust, and the defendants have cross-appealed from the entire decree.
1-3. The decree of the trial court, although fully supported by the evidence, lies beyond the issues presented by the plaintiff's complaint. The general denial of the defendants' does not set forth their claim of ownership in and to the property, but denies only that they are trustees for the benefit of the plaintiff, and when it first appeared to the court and to the parties, as it did in this case, that others might have an interest in the controversy of such a nature that a final decree could not be made without affecting them or "leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience" (30 CJS 573, Equity, § 142), it became not *263 only the parties' duty, but the court's, to cause the additional parties to be brought in. Section 1-315, OCLA, now ORS 13.110, provides: "The court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but when a complete determination of the controversy can not be had without the presence of other parties, the court shall cause them to be brought in." See also Cottrell et ux. v. Prier et ux., 187 Or 454, 212 P2d 87.
It appears from the record before this court that an administrator has been appointed for the estate of Albert R. Myers, deceased, and there is ample authority to the effect that this court has the authority to reverse a decree and remand the cause in order that necessary and proper parties might be brought in. Cottrell et ux. v. Prier et ux., supra; Wheeler v. Lack, 37 Or 238, 61 P 849.
The decree appealed from is reversed and the cause remanded to the circuit court with instructions to cause the administrator of the estate of Albert R. Myers, deceased, and any other necessary and indispensable parties to be brought in so that a complete determination of this controversy can be had.
Both the plaintiff and the defendants appear to be equally at fault in the failure to bring the necessary parties before the court and, therefore, neither party shall recover costs in this court. | d3db8aec0d82f5c2bff1b1e7d3c6d1b47097e86267ce3e8a66a904ff8b94ff90 | 1954-05-05T00:00:00Z |
5c374e34-c43d-40d9-b4f3-008ece458f50 | City of Reedsport v. HUBBARD ET UX. | 202 Or. 370, 274 P.2d 248 | null | oregon | Oregon Supreme Court | Reversed September 22, 1954.
Petition for rehearing denied October 20, 1954.
*372 Edward M. Murphy argued the cause for appellants. On the brief were Yates, Murphy & Carlson, of Roseburg.
*373 Carl M. Felker argued the cause for respondent. On the brief were Geddes & Felker, of Roseburg.
Before ROSSMAN, Presiding, and LUSK, BRAND, TOOZE and PERRY, Justices.
REVERSED.
TOOZE, J.
This is a suit for strict foreclosure of a contract for the sale of real property, brought by the city of Reedsport, a municipal corporation, as plaintiff, against Russell J. Hubbard and Eva K. Hubbard, his wife, as defendants. Decree was entered in favor of plaintiff; defendants appeal.
On May 6, 1941, plaintiff entered into a written contract to convey certain river frontage and sawmill site property within the city limits of Reedsport, in Douglas county, Oregon, to the defendant Russell J. Hubbard. The city had acquired title to this property by virtue of a conveyance from the county of Douglas, the county having acquired its title through delinquent tax foreclosure proceedings.
In addition to a cash consideration of $150 to be paid by defendant Hubbard to plaintiff, the contract provided that the defendant should construct on the property and put in operation a sawmill having a capacity of not less than 50,000 feet of lumber for an eight-hour shift. The contract recited that the title to the lands was defective and provided that the defendant should, at his own expense, institute in the name of the city of Reedsport, as plaintiff, and diligently prosecute to final determination, a suit to quiet the title to the property. It was provided that such suit should be commenced within thirty days from the date of the contract. The agreement also provided that the defendant should be entitled to the exclusive possession of the property from and after the date of *374 the commencement of the suit and so long as he kept and performed the obligations on his part to be performed, subject to certain rights of Kern & Kibbe.
The contract contained the following specific provisions:
Defendant paid the $150 cash consideration, within the thirty day limitation caused the suit to quiet title to be commenced, and immediately went into possession of the property. As soon as defendant took possession of the property, he began to make extensive plans for the construction of a sawmill. He repaired an old mill building on the premises, cleaned up the debris, and built an assorting chain and planer shed, expending from $10,000 to $12,000 therefor. He also employed a mill designer, acquired sawmill machinery of the approximate value of $54,000, and arranged for a loan of $75,000 as operating capital.
At the outset, it was anticipated that the decree in the suit to quiet title would be obtained by default. However, two of the defendants filed answers to the complaint, and a taxpayer moved to intervene in the suit. As an affirmative defense and by way of cross complaint, one of the defendants, Umpqua Mills and Timber Company, a corporation, attacked the validity of the contract between plaintiff and defendant. A similar attack was made by the proposed complaint in intervention.
On December 19, 1941, an order was entered sustaining a demurrer to the cross complaint of defendant Umpqua Mills and Timber Company, and also denying the motion of the taxpayer to intervene. On February *376 17, 1942, the taxpayer, Umpqua River Navigation Company, a corporation, gave notice of appeal to the Supreme Court from the order denying intervention. However, the appeal was not perfected and was eventually dismissed. But O.H. Hinsdale, secretary-treasurer of Umpqua River Navigation Company, who had verified the proposed complaint in intervention, and after the motion to intervene had been denied, told defendant that his company intended to commence an independent suit based upon the same grounds as set forth in the complaint in intervention.
A reasonable fear upon the part of defendant that such threat of independent litigation would be carried into execution was justified by a consideration of some of the language used in the written memorandum of the trial judge respecting the demurrer to the cross complaint of defendant Umpqua Mills and Timber Company, and the motion to intervene. The trial judge wrote as follows:
*378 The proceedings in the suit to quiet title having taken the turn which they did, defendant became fearful that the litigation in the suit would be prolonged, and that he might never acquire title to the property. As a result, in December, 1941, he entered into negotiations for the transfer of the mill machinery to a partnership (he owned a fifth interest therein) located at Sutherlin, in Douglas county. The sale was made, and the machinery and other equipment were moved to Sutherlin in February, 1942. This country was then at war, and defendant explained that it was his desire to get the machinery and equipment into operation before it was seized by others possessing a government priority.
Eventually defendant made a settlement with the two answering defendants in the quiet title suit, paying one defendant the sum of $500 for its alleged interest in the property, and thereupon, on June 19, 1942, a final decree quieting title was entered. Under this decree and pursuant to the terms of a settlement between defendant and Kern & Kibbe, defendant acquired title to the following described personal property: The spur railroad tracks leading from the Southern Pacific main spur to the dock, including all rails, stringers, ties, switches, fastenings, etc.; one cylinder oil storage tank with equipment, water tank, all water and oil pipes and power lines; one Shay locomotive, built by Lima Locomotive Company; and one derrick, complete with lines and equipment.
At the time the final decree was entered in the suit to quiet title, there was in effect order L-41, issued by the War Production Board of the United States Government. Under the order, all new sawmill construction required the approval of the War Production Board. Immediately after the decree was entered, *379 defendant undertook proceedings to obtain the approval of the War Production Board for the construction of a sawmill upon the property in question at Reedsport. His application was denied. He made a trip to Washington, D.C., in an endeavor to secure such approval. Moreover, he frequently conferred with Mr. Frederick Herbert Brundage, of Portland, who had been appointed Western Log and Lumber Administrator in the office of the War Production Board, in an endeavor to secure a removal of the ban on the proposed construction at Reedsport. There is but little doubt that defendant acted in good faith. However, all his efforts to secure approval of the War Production Board failed. The wartime restrictions were not removed until some time in October, 1945.
However, on September 9, 1943, the city of Reedsport commenced this suit for strict foreclosure of the contract, alleging that defendant had failed to construct a sawmill on the property. In its original and amended complaints the city prayed for a decree declaring defendants to be in default in the contract and requiring them to put into operation a sawmill of the capacity provided for in the contract "within sixty days of the date of said decree or such other time as to the court may seem just and equitable in the premises". A general demurrer was sustained to the original complaint, and the amended complaint was filed on October 5, 1943. On October 22, 1943, defendants filed their answer to the amended complaint, in which it was alleged that portion of the contract which provided that the time for final completion of the mill might be extended in the event of delays occasioned by Government priorities or any other act or thing "occurring over which the Second Party, Hubbard, has no control". The defendants then alleged *380 that the delay in constructing the mill was occasioned by Hubbard's inability to obtain government priorities and also by reason of the difficulties encountered in the quiet title suit.
On November 18, 1943, plaintiff filed a motion to make the answer of defendants more definite and certain in some respects, and to strike certain portions thereof. On June 22, 1944, an order was entered sustaining the motion in part, and denying it in others, but not requiring the filing by defendants of an amended pleading.
On July 11, 1944, plaintiff filed a reply, being a general denial of the new matter alleged in the answer. Therefore, on July 11, 1944, the case was at issue and ready for a trial date. However, no further action whatever was taken in the case until October 22, 1946, when plaintiff took defendant Hubbard's deposition.
Thereafter, and on March 13, 1947, an amended reply was filed by plaintiff. In this reply, plaintiff affirmatively alleged the following:
On April 21, 1947, the matter was tried to the court. The evidence disclosed the facts as hereinabove stated. Upon the trial, the gist of plaintiff's contention was that because defendant had in his possession the necessary equipment to complete the construction of a sawmill in 1941 and early 1942, some several months before he was required to perform under the contract, his inability to secure approval of the War Production Board when time for performance arrived offered no excuse for his delay and established a default on his part.
Upon the trial it developed from the evidence that while defendant had been in possession of the property, he had received substantial income from rentals, particularly from the use of the personal property he had acquired from Kern & Kibbe.
On May 1, 1947, plaintiff moved for permission to file a supplemental complaint. The gist of this proposed complaint was that defendant had not constructed a sawmill since the commencement of the suit. On December 16, 1947, the motion to file supplemental complaint was denied. Plaintiff, on March 16, 1948, filed a second motion for permission to file a supplemental complaint. An order was entered denying the motion on July 22, 1949.
On November 21, 1951, the trial court entered of record its findings of fact and conclusions of law. We quote the following portions thereof:
On the same day, November 21, 1951, and based upon the findings of fact and conclusions of law, the court entered an interlocutory decree, a portion of which reads as follows:
*384 The defendant having failed to construct and place in operation the sawmill as provided in the interlocutory decree, a final decree was entered August 26, 1952, foreclosing the contract and directing that immediate possession of the premises be delivered to plaintiff. Paragraph five of this decree provides:
Defendants first contend that the suit should have been dismissed because it was prematurely commenced, and that the trial court erred in not dismissing it.
1. It is elementary that if at the time a suit is commenced, a cause of suit has not accrued and does not exist, the suit should be dismissed. The defect cannot be cured by the filing of a supplemental complaint for a cause of suit arising thereafter. The rule is stated in 1 CJS 1391, Actions, § 125d, as follows:
In Clark v. Morrison, 80 Or 240, 245, 156 P 429, it is stated:
See also May Stores, Inc. v. Bishop et al., 131 Or 670, 672, 282 P 1080; Bergin v. Temple, 111 Mont 539, 111 P2d 286, 133 ALR 1115; American Agricultural Chem. Co. v. Thomas, 206 SC 355, 34 SE2d 592, 160 ALR 594, 598.
If defendant was not in default in the performance of the contract on his part to be performed on September 9, 1943, when the instant suit was commenced, then no cause of suit existed in favor of plaintiff. Subsequent events giving rise to a cause of suit in favor of plaintiff could be of no avail in the present proceeding. If at the time this suit was commenced, no cause of suit had accrued, then the suit was prematurely commenced and should have been dismissed.
2. The plaintiff and defendant entered into an agreement in writing which specifically prescribed their respective rights and obligations. The provisions of the contract are definite, certain, and wholly unambiguous. It is axiomatic that such a contract must be construed according to its plain terms.
3-5. Whether at the time this suit was commenced, the defendant was in default must be determined in the light of the express contract provisions. The court has no authority to read into said contract a provision which does not appear therein, nor to read out of it any portion thereof. And this is true, even though the result may appear to be harsh and unjust. The contracts of parties sui juris are solemn undertakings, and in the absence of any recognized ground for denying enforcement, they must be enforced strictly according to their terms. It is not the province of the court to rewrite a contract for the purpose of accomplishing *386 that which, in the court's opinion, might appear proper. ORS 174.010, 174.020; Fendall v. Miller, 99 Or 610, 196 P 381; Sinnott v. Interstate Contract Co., 86 Or 189, 168 P. 81.
In 17 CJS 702, Contracts, § 296, it is said:
6. Under the express provisions of the contract, defendant was not required to commence construction of a sawmill until within 45 days after the final decree in the quiet title suit was entered. That is the time expressly set for performance on his part. What he may have done before that time is wholly immaterial. It also is immaterial that what he did prior to his sale and removal of sawmill machinery may have been done in preparation for carrying out the provisions of the contract when it came time for him to perform. All that activity was voluntary on his part and was in no way required by the contract. There is nothing whatever in the contract that would deny him the right to construct another sawmill and operate it elsewhere than in the city of Reedsport; insofar as the contract was concerned, he had a right to construct and operate *387 as many sawmills as he desired, and to construct and dismantle as many as he cared. Whether he defaulted in his contract with plaintiff is to be determined from the situation that existed at the time he was required to perform according to his agreement, and not as it had existed at some time prior thereto.
7. The record on the trial conclusively established the proposition that when the time for performance by defendant arrived, as provided in the contract, he could not perform because of inability to secure the approval of the War Production Board. Under the contract, that constituted an absolute excuse for the delay in performance. Defendant could not be in default for failure to perform so long as the ban of the War Production Board remained in effect. That ban was continuously in existence from the summer of 1942 until the fall of 1945.
The trial court adopted the theory of plaintiff that because at a time prior to the date for performance on his part the defendant had secured enough equipment to complete the construction of a sawmill, and had he retained it, could have performed when time for performance arrived, his inability to secure approval by the War Production Board for the purchase of the machinery and equipment necessary was no excuse for nonperformance. In this the trial court erred. By adopting that theory of plaintiff, the court, in effect, rewrote the contract of the parties; it read into it a new condition. That it could not do.
8. When the instant suit was commenced in September, 1943, defendant was not in default under his contract, and no cause of suit had accrued in favor of plaintiff. The suit should have been dismissed.
9. In October, 1945, all government bans against new sawmill construction were removed. Had the instant *388 litigation not been pending, it would have been the obligation of defendant to then perform his contract. However, the pendency of this suit was just cause for further delay in performance a cause over which defendant had no control. Until it was finally determined whether his contract was to be strictly foreclosed, he was not required to perform.
10. Although on the merits this cause should have been dismissed, it also is true that it could and should have been dismissed for lack of prosecution not later than early in 1945. § 6-203, OCLA: Reed v. First Nat. Bank of Gardiner, 194 Or 45, 55, 241 P2d 109. It was the duty of plaintiff to prosecute the case with diligence. As the record shows, it was woefully neglectful in that respect in this case. Any inconvenience or loss it has suffered because of the delay in the prosecution of this suit is due to its own laches. In Reed v. First Nat. Bank of Gardiner, supra, we said:
In fairness to counsel who appeared for the plaintiff on this appeal, it should be stated that they did not appear as attorneys for plaintiff until after the trial and are in no way responsible for the lack of diligence in prosecution.
11, 12. Based upon the final decree entered in this suit, the plaintiff on September 25, 1952, filed in this cause a supplemental complaint in which it alleged that while in possession of the premises involved in this *389 litigation, the defendant received as rentals from the Umpqua River Navigation Company the sum of $34,924.30, up to March, 1947, and since March, 1947, has received additional rentals and profits from the use of said property, the amount of which is to the plaintiff unknown; plaintiff prays for an accounting for such rentals and profits, and for a decree that it be declared the owner thereof, and that defendant be ordered to pay the same to plaintiff.
Proceedings upon said supplemental complaint await the final disposal of this cause upon this appeal.
The greater portion of the several sums of money received by defendant came from the rental of the personal property which defendant had purchased from Kern & Kibbe, and in which property plaintiff had no interest.
Under the law of this state, plaintiff is not entitled to the rents and profits in the use of said premises while defendant was lawfully entitled to and was in possession thereof under his contract. They belonged to defendant. In a suit for strict foreclosure of a land purchase contract the plaintiff vendor is not entitled to the rents and profits received by the vendee from the property during the time he is in default. Grider v. Turnbow, 162 Or 622, 646, 94 P2d 285. In this case Mr. Justice BAILEY, speaking for the court, said:
13. It is a well-established rule of law in Oregon that the institution of a suit for strict foreclosure of an *390 executory contract for the sale and purchase of land does not effect a cancellation of the contract, but rather is a recognition of its continued existence. The rights of the parties under the contract that are incident to ownership and possession are not affected until the court has entered its decree. The bringing of a suit for strict foreclosure is an affirmance of the contract. Gulick v. Copeland, 186 Or 640, 648, 207 P2d 1042; McCracken v. Walnut Park Garage, Inc., 156 Or 697, 703, 68 P2d 123.
Commencing in June, 1941, when the suit to quiet title was begun, defendant was entitled to and did go into possession of the property and continued in possession thereof until final decree was entered in this suit. His possession was lawful, exclusive, and strictly in accordance with the provisions of the contract of sale and purchase.
14. Under an executory contract for the sale and purchase of land the vendee is treated in all respects as the owner of the property, although he has an equitable estate only. Until the contract is fully performed and the vendee is entitled to a conveyance of the legal title, the vendor retains the legal title simply as security for performance by the vendee.
In Harder et ux. v. City of Springfield et al., 192 Or 676, 686, 236 P2d 432, Mr. Justice WARNER, in speaking for the court, quoted with approval the following from 2 Pomeroy, Equity Jurisprudence 5th ed, 21, § 368, respecting the relationship between a vendor and vendee under an executory contract for the sale of land:
Also see Sheenhan v. McKinstry et al., 105 Or 473, 483, 210 P 167, 34 ALR 1315.
15. In its brief, plaintiff devotes considerable space to a discussion of the jurisdiction of a court of equity in support of its contention that defendant should be required to account to it for the several sums of money received by him as rentals and profits for the use of the real and personal property while he was in possession. It says as to the jurisdiction of a court of equity:
It is true that the arms of equity are long and far-reaching in a proper case, but before an equity court is authorized to do the things suggested by plaintiff, *392 a cause of suit must not only be alleged, but also must be established by the evidence. In the instant case a cause of suit was alleged, but the evidence failed to establish its existence. As a consequence, the court had no authority other than to dismiss the suit. Moreover, as before stated, no accounting was due the plaintiff. For a discussion regarding the jurisdiction of a court of equity see Walker v. Mackey et al., 197 Or 197, 207, 251 P2d 118, 253 P2d 280; Powell v. Sheets, 196 Or 682, 696, 251 P2d 108.
The decree is reversed and this cause is remanded to the trial court with directions to dismiss the suit. Neither party shall recover costs. | a87d5c25889c249585b0c4f450d61e67fc38743630dd0d055e0343bd41da322e | 1954-09-22T00:00:00Z |
6694cc8b-3f70-4bed-8a78-3222a9c5ab56 | Drake Lumber Co. v. Paget Mortgage Co. | 203 Or. 66, 274 P.2d 804 | null | oregon | Oregon Supreme Court | Affirmed as modified October 13, 1954.
Petition for rehearing denied January 5, 1955.
*68 Lowell C. Paget and Irving Rand, of Portland, argued the cause and submitted briefs for Appellant, Paget Mortgage Company.
Arthur H. Lewis, of Portland, argued the cause and submitted a brief for Respondent, Drake Lumber Company.
Robert F. Maguire and Randall B. Kester, of Portland, filed a brief as amici curiae.
B.A. Green, Donald S. Richardson, Burl L. Green and James B. Griswold, of Portland, filed a brief for Oregon State Federation of Labor and Oregon State Building and Construction Trades Council as amici curiae.
Before LATOURETTE, Chief Justice, and WARNER, ROSSMAN, LUSK, BRAND and PERRY, Justices.
AFFIRMED AS MODIFIED.
LUSK, J.
Plaintiff, Drake Lumber Company, commenced two suits, each to foreclose a mechanic's lien for material furnished by it, and also liens of other suppliers of building material which had been assigned to it. The suits were consolidated for trial, and resulted in decrees foreclosing Drake's liens and fixing the order of priority as between such liens and liens of certain prior recorded mortgages upon the properties involved held *69 by the defendant Paget Mortgage Company. Paget appealed from portions of the decrees adverse to it, and the appeals were consolidated for hearing in this court. The only issues now remaining are those between Paget as mortgagee and Drake as lienor for materials which it furnished.
The assignments of error challenge the validity of such liens and, as well, provisions of the decree which gave them priority over the liens of Paget's mortgages.
Each of the liens is for material furnished by Drake to Hugh Lindquist, builder, for use in the construction of a frame dwelling house in Portland on land of which Zoe Lindquist was stated in the lien notices to be the owner or reputed owner. The contract price and reasonable value of the material furnished, as stated in the lien notices, is in each instance the sum of $1554.11. The houses were constructed on adjoining city lots known respectively as Nos. 4506 and 4516 N.E. 40th Avenue.
The ground of challenge to the enforcibility of the liens first to be noticed is that Drake failed to allege or prove, in accordance with the requirement of ORS 87.020, that, not later than seven days after the first delivery of material, it gave written notice to the owner of the property that it had commenced to deliver material. Drake contends that the provision is not applicable because the amended complaint alleges, and the proof establishes, that Hugh Lindquist, the contractor, was the common-law agent of Zoe Lindquist, the owner of the land. Each of the amended complaints contains the following allegations:
1. It was further alleged that both Hugh Lindquist and Zoe Lindquist were indebted to plaintiff Drake in *71 the amount of the lien. The evidence, in our opinion, fully supports these allegations. In substance it is as follows: In the early part of 1942 Hugh and Zoe Lindquist were the owners as tenants by the entirety of Block 9, Going Street Addition in the city of Portland. Hugh Lindquist undertook the construction of fourteen houses on the property and finished and sold seven houses on the east half of the block facing on 41st Street. Paget loaned moneys secured by mortgages on the lots to enable Lindquist to finance the enterprise. Upon the completion of the first seven houses it developed that Lindquist was unable to pay his creditors, among whom was Drake. To enable Lindquist to proceed with the building program on the lots on the west half of the block, and thus, it was hoped, to liquidate his indebtedness to Drake and several other materialmen creditors, it was agreed that Lindquist should place the title to Lots 9 to 16 (comprising the west half of Block 9 and including the two lots in controversy in this case) in Mrs. Lindquist's name, and that all moneys remaining after payment of the construction costs should be paid over to these creditors up to the amounts due them. It was agreed that J.P. Lipscomb, who had made application on behalf of Lindquist to Paget for mortgage loans to finance the construction, should prepare vouchers for labor, make salary payments to Lindquist of $50.00 per week from the proceeds of the mortgage loans, and keep a complete record of all the transactions and submit it to the Lindquists and "interested creditors". This arrangement was confirmed by Hugh and Zoe Lindquist in a memorandum signed by them dated December 16, 1942. Prior to that Lindquist had conveyed his interest in the property to his wife by deed dated November 24, 1942, and recorded on the same day. As a part *72 of the same transaction, apparently, Mr. C.V. Drake, president of Drake Lumber Company, under date of December 18, 1942, initialed the following writing: "December 18, 1942. Top price any one house guaranteed by Drake Lbr. Co. C.V.D." The "top price" appears above the writing as $1286.94, being the average of the cost of materials used in seven houses previously built by Lindquist. Further, under date of November 30, 1942, the plaintiff Drake addressed the following letter to Paget:
On November 3, 1943, a decree was entered by the Circuit Court for Multnomah County setting aside the deed from Hugh Lindquist to Zoe Lindquist as in fraud of creditors.
The learned circuit judge found that Hugh and Zoe Lindquist were engaged in a joint adventure for the construction of the houses, and therefore that the statutory requirement of seven days' notice of the commencement of delivery of materials was not applicable. There is evidence to support the court's conclusion. *73 But, even though there was no joint adventure, the inference that Hugh Lindquist was his wife's authorized agent to purchase materials to be used in the houses, is inescapable. For she was not only fully apprised of the details of the plan of procedure which we have outlined and the object to be accomplished by it, but was herself a party to it, having signed the memorandum of December 16, 1942, which clearly comprehends the granting by her to her husband of the authority in question.
2. Defendant Paget contends, however, that whether Hugh Lindquist was his wife's common-law agent is immaterial, because, it is urged, the statute which requires notice to be given to the owner of the land of delivery of materials "to a contractor or agent" (ORS 87.020) applies equally whether the person receiving such delivery is the statutory agent of the owner, as defined in ORS 87.005, or the owner's common-law or general agent. The point is ruled squarely against this contention by Drake Lumber Co. v. Lindquist, 179 Or 402, 170 P2d 712 (referred to in the briefs as the Doll case), which was a suit to foreclose a lien against one of the lots in Block 9, Going Street Addition, and involved the identical transaction now before the Court. We held in that case:
We reversed the decree of the Circuit Court dismissing the suit after sustaining a demurrer to an amended complaint, the allegations of which, as they relate to the present question, were in substance identical with those in the amended complaints in these cases which we have quoted above. It is argued by counsel for Paget that the decision should be restricted to a case where "material is purchased for the account of an owner, either by the owner in person or by an agent." But the opinion contains no such limitations and none can be read into it, for the complaint in the Doll case alleges that the "lumber and supplies were sold to said Hugh Lindquist" just as do the amended complaints in this case. The lien notice in that case stated (as do the lien notices here) that the materials were furnished "to, and at the special instance and request of Hugh Lindquist" and that "Zoe Lindquist was the owner or reputed owner of said land and the building * * * thereon" at the time claimant commenced to furnish materials. With reference to these statements we said:
The Doll case, therefore, is a controlling precedent here and requires a holding that failure to give the statutory notices did not impair the validity of Drake's liens.
The original complaints in the present cases, which were filed June 14, 1944, did not contain the allegations of the amended complaint which we have quoted above. The amended complaints were filed on November 26, 1948. On April 24, 1950, on motion of Paget, these pleadings were stricken from the files, for the reason, as recited in the court's orders, that the original complaints failed to state a cause of suit because they contained no allegations of compliance with § 67-101, OCLA (ORS 87.020), and the amended complaints were filed more than six months after the filing of the liens, and therefore the causes of suit therein stated were barred under the limitation of § 67-107, OCLA (ORS 87.055) (requiring that suit to foreclose must be commenced within six months after the lien is filed).
3. Upon the trial counsel for Drake moved for leave to amend the original complaints so as to incorporate the allegations with reference to the agency of Hugh Lindquist and his wife and the transfer of the title to the property to Zoe Lindquist which we have quoted in other words, to reinstate the stricken amended complaints. The court permitted the amendments, and the ruling is challenged on two grounds, first, that upon the filing of the amended complaints the original complaints ceased to be a part of the record, *76 and, therefore, after the amended complaints were stricken from the files, there were no pleadings left to amend; and, second, that the original complaints did not state a cause of suit and were a nullity and could not be amended after the six months' statute of limitations had run. As to the first objection, it is sufficient to say that we have heretofore held that the effect of an order striking an amended pleading is to restore the original pleading. Abrahamson v. Northwestern P. & P. Co., 141 Or 339, 348, 15 P2d 472, 17 P2d 1117. This is the rule in other jurisdictions, as shown by the authorities cited in the opinion in that case. See, also, 71 CJS 1058, Pleading § 509.
4. The other ground of challenge to the allowance of the amendments calls for consideration of the general rule that where an amended complaint, which introduces a new and different cause of action from that stated in the original complaint, is filed after the period of limitations has run, it will be regarded as the commencement of a new action which does not relate back to the time when the original complaint was filed and therefore is barred by the statute of limitations. See Fox v. Ungar, 164 Or 226, 98 P2d 717. The application of the rule in the case cited was disapproved as too strict in Ross v. Robinson, 174 Or 25, 147 P2d 204. We think that under the modern and more just and liberal view, which was fully developed by reference to the authorities in the Ross case, the allowance of the amendments in this case was proper. The precise point of attack here is that the original complaints did not state any cause of suit whatever. But that was also one of the claims of the defendant in the Ross case, which was a statutory action for death by wrongful act brought on behalf of the estate of the deceased and in which the original complaint failed *77 to negative the existence of the preferred beneficiaries named in the statute. We had previously held that the complaint was demurrable in Ross v. Robinson, 169 Or 293, 124 P2d 918, 128 P2d 956. None the less, we ruled on the second appeal that an amended complaint which supplied the necessary averments was not vulnerable to demurrer on the ground that the action was barred by the statute of limitations, although such amended complaint was not filed until more than two years after accrual of the cause of action. We quoted with approval the pronouncement that an amendment should be allowed which "does not operate totally to confer jurisdiction" but merely supplies "an additional jurisdictional averment essential to clothe the court with complete power to conduct the suit to a legal conclusion", Neubeck v. Lynch, 37 App (DC) 576, 37 LRA (ns) 813, and the statement of Mr. Justice Holmes in New York C. & H.R.R. Co. v. Kinney, 260 US 340, 67 L ed 294, 43 S Ct 122, that "when a defendant has had notice from the beginning that the plaintiff sets up and is trying to enforce a claim against it because of specified conduct, the reasons for the Statute of Limitations do not exist, and we are of opinion that a liberal rule should be applied." Each of the original complaints in the instant case alleged that plaintiffs furnished materials to the defendant, Hugh Lindquist, at his special instance and reqeust, to be used in the construction of a building on described property, and that "the defendants Hugh Lindquist and Zoe Lindquist, husband and wife, were the owners or reputed owners of said property, and said construction was commenced and carried on with their full knowledge, approval, and consent." We are not prepared to say that in the absence of demurrer these allegations would not have been deemed sufficient to charge that Hugh Lindquist *78 was agent for his wife in the transactions. But, that apart, we hold that, under the principles approved by us on the second appeal of Ross v. Robinson, the amendments were properly allowed and related back to the time the original complaints were filed. Andersen v. Turpin, 172 Or 420, 429, 142 P2d 999. To hold that the filing of the amended complaints was tantamount to the commencement of new suits, and therefore that plaintiff is barred by the statute of limitations, would be to revive theories touching procedure which we discarded in Ross v. Robinson.
Another ground of invalidity of the liens asserted by Paget is that in each instance the amount claimed in the notice of lien is "purely fictitious."
The statute gives a lien to any "person * * * furnishing any material to be used in the construction of any improvement * * * for the * * * material furnished * * *" ORS 87.010, and provides that a person claiming the benefit of that section "shall file for recording with the recording officer of the county in which the improvement * * * is situated, a claim containing a true statement of his demand, after deducting all just credits and offsets". ORS 87.035.
The evidence shows that all material ordered by Lindquist from Drake was delivered by Drake to the property on which it was to be used, but that some material ordered for one house was used by the contractor in the construction of the other, and that in addition, possibly, "a very little of it", as Lindquist testified, was used in a third house, which was also under construction. The amount claimed in each of the lien notices was, as stated, $1554.11, and was arrived at *79 in the following manner, according to the witness Bennett, credit manager for Drake: As evidenced by the prices charged in the load tickets which were issued with each delivery of material the total price for material delivered to No. 4506 N.E. 40th Street was $1679.28; that for material delivered to No. 4516 N.E. 40th Street was $1453.44. The price charged for material furnished for use in building the third house above mentioned was $1531.11. The total of these three sums, to wit, $4663.83, was divided by three and the resulting quotient, $1554.61, was taken as the amount properly chargeable against each property and the amount set up in the lien claims. Vouchers for such amounts drawn on Paget by Lindquist were delivered to Drake. The uncontradicted evidence is that the prices charged in the load tickets were reasonable.
Bennett, who qualified as an expert witness on the subject, testified that he made an inspection of the two houses after they were completed, from which he determined that material of the kind and character furnished by Drake and actually used in No. 4506 was of the reasonable value of $1429.10 and in No. 4516 was $1545.60.
The total of the prices charged in the load tickets for material furnished by Drake for both houses involved is $3132.72, or $24.50 in excess of the sum of the amounts claimed in both lien notices. The houses are substantially of the same size, though house No. 4516 is somewhat larger than house No. 4506. The third house mentioned is of comparable size to the other two. As testified to by Bennett, the reasonable value of the material furnished by Drake that went into house No. 4516 is $125.01 less than the amount of the lien, and the reasonable value of the material which went into house No. 4506 is $8.51 less than the *80 amount of the lien. The total of the prices indicated in the load tickets for material delivered to house No. 4506 is $125.17 in excess of the claim, and the total of such price for material delivered to house No. 4516 is $100.67 less than the claim.
No attempt was made by Paget to dispute Bennett's estimate of the quantity and value of materials furnished by Drake and which were actually used in the houses involved, nor to question the reasonableness of the prices shown on the load tickets. Apart from the discrepancies in the amounts of the liens and the figures above stated Paget relies on the following facts: First, it is asserted that the claim is greatly in excess of the "contract price" of $1286.94 "guaranteed" as the top price for materials in any one house in the memorandum initialed by Mr. Drake to which we have referred. But in our opinion this memorandum did not amount to a contract; it bound Lindquist to nothing and was a mere offer which was never accepted by him, for, as the record discloses, Lindquist felt free to buy material from other materialmen than Drake and did so. It is shown without contradiction that, due to war conditions, costs had mounted between the time of the signing of this memorandum and the furnishing of the materials, and that the prices charged were reasonable. Next Paget points to a sworn bill of particulars filed by Drake in the case relating to house No. 4506 and which showed a total charge of $1471.30 for material furnished to be used in that house, or approximately $83.00 less than the amount of the lien.
5. The rule governing the question thus presented is that where the claimant has intentionally or through culpable negligence overstated the amount due him such overstatement will render the whole lien void, but a mere mistake in the statement will not necessarily *81 render the whole lien void when it is evident that no fraud is intended, and where it has not misled the defendant owner to his prejudice in making his defense. Bartels v. McCullough, 102 Or 66, 70, 201 P 733, and cases cited. See, also, Northwest Lbr. & Fuel Co. v. Plantz, 126 Or 69, 73, 227 P 1116, 268 P 763; Davis v. Bertschinger, 116 Or 127, 133, 241 P 53; Cooper Mfg. Co. v. Delahunt, 36 Or 402, 407, 51 P 649, 60 P 1 (1898). As an example of an overstatement which will void the lien see West v. Wilson, 136 Or 262, 266, 297 P 847, where this court held that a claim in a notice of lien for $1826.00, when the greatest amount plaintiff would be entitled to according to his contract after deducting an admitted credit, would be $820.00, "was not a mistake but an intentional overstatement."
6, 7. The evidence does not convince us that Drake either intentionally or through culpable negligence overstated its claims. The difficulty which is encountered in arriving at a strictly accurate statement was not of its own making, but arose from the use by the contractor in one house of material furnished for use in another. This Drake could hardly have prevented "for it cannot be expected that a materialman would be obliged to watch the progress of a structure, to see that every stick of material so supplied by him was used therein". Fitch v. Howitt, 32 Or 396, 409, 52 P 192. Ordinarily, as the cited case holds, the burden is on the defendant to show that material delivered for construction of a building was not used therein. See, also, Northwest Lbr. & Fuel Co. v. Plantz, supra; West Side Lumber & Shingle Co. v. Herald, 64 Or 210, 216, 128 P 1006. In the instant cases, however, plaintiff's own proof showed that to some extent material intended for use in one house was used in the other, and, possibly, a small quantity in a third house. In this situation it *82 would seem to be incumbent upon the plaintiff to go forward and establish as best it may the quantity and value of the material furnished which was actually used in the particular improvement. This the plaintiff undertook to do, and the evidence it produced stands uncontradicted and is not unreasonable, either inherently or in respect to the other evidence in the case. We think that the just and equitable conclusion is that the amounts to be allowed should be based on the estimates of the witness Bennett, to wit, $1429.10 for house No. 4506 and $1545.60 for house No. 4516. The discrepancy between these amounts and the amount of the demands in the lien notices is not so great as to lead to an inference either of dishonesty or negligence, or to warrant a court in declaring the liens void in their entirety.
8, 9. The final objection to the validity of the liens is based upon the claim that Drake was engaged in a joint adventure with Lindquist in the construction of the houses. Authorities are cited to the effect that a person will not be permitted to enforce a lien on his own property to the prejudice of third persons holding similar liens. It is argued that the arrangement concluded by Lindquist and his wife and Drake and other creditors of Lindquist (described earlier in this opinion), pursuant to which the houses were built, resulted in the creation of a joint adventure between Lindquist and the creditors. But joint control and proprietorship, as well as an agreement to share the profits, are generally essential to a joint adventure. Portland Trust & Savings Bank v. Lincoln Realty Co., 180 Or 96, 123, 170 P2d 568. Neither of these elements is found in the transaction under consideration. Lindquist's *83 agreement to apply the profits to the payment of his indebtedness to Drake and other creditors did not constitute an agreement for the sharing of profits. On the contrary, it contemplates that any profits that might be made were to belong to Lindquist, or to Lindquist and his wife, and not to his creditors. We think that this contention is wanting in substance.
By the decrees the mechanics' liens of plaintiff Drake were given priority over the liens of defendant Paget's mortgages, although the latter were executed and recorded prior to the creation of the former. Contending that this was error, counsel for Paget urge upon the court a re-examination of its decisions construing the statute which governs this question. That statute is ORS 87.025, Subdivisions 2 and 3. So far as pertinent to the present discussion it reads:
(Subdivision 3, enacted by Oregon Laws 1939, ch 527, requires a seven-day notice of the delivery of material to be given to the owner of record of such prior recorded mortgage.)
*84 The language just quoted was a part of the mechanic's lien law enacted in 1885, Laws 1885 P. 14 § 3, and has remained unchanged from the time of its enactment to this day. In 1882 the court decided the case of Inverarity v. Stowell, 10 Or 261, which involved a question similar to that now before us. The statute under which that case arose contained no provision giving priority to a mechanic's lien over a prior recorded mortgage. The court applied the common-law rule that the building became a part of the land and subject to the lien of the mortgage as soon as it was annexed, and held that it had no power to postpone the prior lien of the mortgage to the mechanic's lien as to any portion of the property, either the land or the building. The present statute was first construed in 1898 in Cooper Mfg. Co. v. Delahunt, supra, in an opinion by Mr. Justice ROBERT S. BEAN. The question presented was whether a lien for material furnished for the erection of a dwelling house upon premises on which there was a mortgage recorded before commencement of construction should be given priority over such mortgage as to the building alone. The court said:
This construction was announced in answering the contention of the holder of the mortgage that the *85 priority granted by the statute to a mechanic's lien was for an alteration or repair of the building only, and not on account of its original construction. What was said in the opinion concerning liens for the alteration or repair of the building is concededly dictum, as the case involved no such liens. The dictum has since been overruled. Bratzel v. Stafford, 140 Or 661, 14 P2d 454, 16 P2d 991; Residential Finance Co. v. Larkin, 149 Or 410, 40 P2d 1008. These cases are in no sense authority for Paget's position. All that they actually decided was that under the particular facts of each case the mechanics' liens for alteration or repair of a building were inferior to prior recorded mortgages upon the land and building. This is true also of Wagner v. Shaw, 6 Alaska 647, and the unreported decision of Federal Judge Robert S. Bean in Stockton Box Co. v. Shasta View Lumber and Box Co., which is cited in Bratzel v. Stafford at pp. 666-668. Whether, in view of some of the language in the opinion of Mr. Justice CAMPBELL in Bratzell v. Stafford (see pp. 664, 665), there may be circumstances under which priority will be accorded to a mechanic's lien for alteration or repair of a building over a previously recorded mortgage upon the land and the building, is a question upon which we express no opinion because it is not before us. But the construction of the statute with respect to the question actually involved in Cooper Mfg. Co. v. Delahunt which is the precise question to be decided here has, so far as we have been able to determine, never been departed from in any subsequent decision of this court. On the contrary, the correctness of that construction seems to have been recognized by the court in Bratzel v. Stafford, supra, and Pacific Spruce Corp. v. Ore. Cement Co., 133 Or 223, 286 P 520, 289 P 489, 72 ALR 1507; and, until this day, it *86 has not been challenged in this court since the decision was rendered more than 50 years ago.
10-12. Meanwhile, the legislature has met many times without amending the statute (save in a particular not here pertinent), thus indicating legislative approval of this court's interpretation of its meaning. The decision has become a rule of property. The court should certainly not be moved to change it by views pressed upon us in argument regarding the expediency of the statute. "The wisdom or policy of such an enactment is a matter exclusively for legislative consideration." Phillips on Mechanics' Liens (3d ed) 423 § 238. Nor is there room for the contention that the statute, as we have construed it, is unconstitutional. That question would seem to be set at rest by Haines Commercial Co. v. Grabill, 78 Or 375, 382, 383, 152 P 877. See 121 ALR 618 and Phillips, op. cit., where the author says: "It is competent to the legislature to give the mechanic, on the building he erects, a lien having priority over a previously recorded mortgage on the land." The decision in Pacific Spruce Corp. v. Ore. Cement Co., supra, relied on by Paget, involves an entirely different question. That question, as stated in the opinion by Mr. Justice RAND, was "whether the lien of a duly recorded purchase price mortgage which was executed simultaneously with a deed conveying the mortgaged land is entitled to priority of payment, not as to the building but as to the land itself, over liens for labor and material furnished to the vendee for a building upon which work had been commenced by the vendee before acquiring title to the land". (Italics supplied.) Mechanics' liens against the building were not involved. They were given priority in the decree of the Circuit Court, and such priority was not challenged on appeal by the mortgagee. The court held that, under *87 a proper construction of the statute, the mortgage was entitled to preference over the liens for labor and material, and that any other construction would render the statute unconstitutional. It was said in the course of the opinion that the primary purpose of the statute was to secure and protect laborers and materialmen for the labor and material furnished in the construction of buildings, and that the statute should be liberally construed to accomplish that purpose, but that, insofar as the statute may subject the owner of the land to the payment of another person's debts for which he is in nowise responsible and deprive him of his property without fault upon his part, the statute should be strictly construed.
There is a wide difference between according priority to mechanics' liens against a building over a previously recorded mortgage of the land, and the allowance of the priority claimed for mechanics' liens in the circumstances of the Pacific Spruce Corporation case. The constitutional objections which the court avoided by denying such preference are not present in the cases now under consideration.
Finally, it is argued that, regardless of all other questions, the statute was never intended to apply to so-called construction mortgages. That is to say, mortgages given to secure future advances made from time to time in aid of the construction of an improvement. Of this kind are the mortgages in these cases. We are told in the briefs of counsel that this method of financing was unknown in 1885 when the statute was passed. We seriously doubt that this would be a controlling consideration if it were a fact. But counsel are wrong in their history. The first edition of Phillips on Mechanics' Liens, published in 1874, contains in § 236 a discussion of cases dealing with mortgages of *88 that sort. Moroney's Appeal, 24 Pa St 372, which is cited in defendant Paget's brief, involves such a mortgage given in August, 1849. But, putting this to one side, the authorities say that
See Union Loan & Savings Ass'n v. Johnson, 118 Neb 17, 223 NW 467; Carriger v. Mackey, 15 Ind App 392, 44 NE 266; Kendall Mfg. Co. v. Rundle, 78 Wis 150, 47 NW 364. In Union Loan & Savings Ass'n v. Johnson, supra, a contention was advanced which is the converse of the contention of the mortgagee in this case. It was said:
In Carriger v. Mackey, supra, the court said:
13. Our statute makes no exception, but manifestly refers to all prior recorded mortgages, whether given for future advances to aid in construction or not. We are not at liberty to import exceptions into the statutes because of possibilities conjured up by counsel that the expectations of a mortgagee concerning the security which he is receiving will be disappointed.
14. In conclusion upon this phase of the case it is our opinion that, when the new mechanic's lien law was passed in 1885, the provision giving priority to mechanics' liens over prior recorded mortgages was adopted in order to supply what was considered to be a defect in the prior law, as construed in Inverarity v. Stowell, supra. That case was decided only three years before the enactment of the present statute, and we are satisfied that the decision in Cooper Mfg. Co. v. Delahunt, supra, properly construed the statute to mean that mechanics' liens for material furnished for original construction are preferred so far as the building is concerned to the liens of prior recorded mortgages on the land.
The decree in each case, after providing that the building should be first offered for sale separate from the land and that the purchaser should remove the building within 30 days after the sale (unless prevented by legal proceedings), next directs that the land be offered for sale and, in case the building is not sold separate from the land, that the building and land then be sold together. It then provides that the proceeds *90 of sale, both of the building and of the land, or of the building and land if sold together, be applied as follows:
In thus giving the plaintiff's liens priority over Paget's mortgages, not only as to the buildings but as to the land as well, the decree is erroneous.
In the brief on behalf of Paget error is assigned to the allowance by the court of three liens for materials assigned to Drake and a lien of Pacific Building Material Company. The decrees give Paget's mortgages priority both as to the land and building over these liens. The owners of the property have defaulted, and there is no one before the court on this appeal with standing to contest them. This assignment of error, therefore, presents no question for our consideration.
It follows that the decrees appealed from should be modified as above indicated with respect to the amounts of plaintiff Drake's liens and by eliminating the priority granted to such liens as to the land, and as so modified the decrees will be affirmed.
The cause will be remanded to the Circuit Court for the entry of such a modified decree, which, when entered, will stand as the decree of this court. No costs or disbursements will be allowed. | db5c5bc224e541e73007e836eca15854b9b14bec1114b2c964efbb948ba4aa60 | 1954-10-13T00:00:00Z |
6c9d0a13-06e1-4607-bf07-25f7c6162a7d | State v. Manzella | 306 Or. 303, 759 P.2d 1078 | null | oregon | Oregon Supreme Court | 759 P.2d 1078 (1988)
306 Or. 303
STATE of Oregon, Respondent On Review,
v.
James Francis MANZELLA, Jr., Petitioner On Review.
TC 60647; CA A43306; SC S34693.
Supreme Court of Oregon, In Banc.
Argued and Submitted April 6, 1988.
Decided July 26, 1988.
*1079 Steven R. Cotton, Gladstone, argued the cause and filed the petition on behalf of the petitioner on review.
Robert M. Atkinson, Asst. Atty. Gen., Salem, argued the cause and filed the response on behalf of the respondent on review. With him on the response were Dave Frohnmayer, Atty. Gen. and Virginia L. Linder, Sol. Gen., Salem.
GILLETTE, Justice.
The issue in this criminal case is whether the state produced sufficient "other evidence" at trial to corroborate defendant's confession for the purpose of ORS 136.425(1), which provides that, in a criminal prosecution, the state must provide "some * * * proof," other than the defendant's confession, "that the crime has been committed."[1] The Court of Appeals concluded that the state produced sufficient evidence to corroborate defendant's confession and affirmed his conviction. State v. Manzella, 88 Or. App. 258, 744 P.2d 1321 (1987). We affirm.
*1080 Defendant was charged with driving while suspended. Former ORS 811.175(1). At trial, the state's only witness was Officer Erickson of the Oregon City Police Department. On the evening in question, Officer Erickson had been dispatched to the scene of an automobile accident. When he arrived at the scene, there were no vehicles in the roadway, but the vehicles allegedly involved in the accident were parked in a nearby parking lot. Defendant was present at the parking lot. He told the officer that his car was a 1976 Toyota two-door sedan and that he had been stopped in the traffic lane waiting to turn left when he was hit from behind by another vehicle. Erickson checked defendant's driver license number and discovered that defendant's driving privileges had been restricted and that he was driving outside the limits of those restrictions. When Erickson confronted defendant with this information, defendant admitted that he knew he had been driving in violation of the restrictions. Defendant was then cited for the present offense.
Erickson did not see defendant drive, nor did he recall seeing defendant's car at the scene of the accident. The state did not produce any witnesses who saw defendant driving. There was no physical evidence that defendant had been driving or that his car had been at the scene.
Defendant moved for a judgment of acquittal on the ground that the state failed to produce any evidence to corroborate his confession, in violation of ORS 136.425(1). The trial court denied his motion, and defendant was convicted. He appealed the denial of his motion for acquittal.
The Court of Appeals noted that, in order to satisfy ORS 136.425(1), the state must produce some evidence, other than defendant's confession, that (1) defendant was driving, (2) without a valid driver license. 88 Or. App. at 262, 744 P.2d 1321. The disputed element is whether defendant had been driving. A majority of the Court of Appeals, sitting in banc, found sufficient evidence to establish that element.
The Court of Appeals majority first noted that, because Erickson checked defendant's driver license number, it was reasonable to infer that defendant had given him the number. That defendant gave Erickson his driver license number, in the majority's view, was some evidence that defendant had been driving. The Court of Appeals also relied on defendant's statements to Erickson that his car had been involved in the accident. The court concluded that those statements were not "confessions" under the following definition:
88 Or. App. at 262-63 n. 2, 744 P.2d 1321 (quoting State v. Allen, 79 Or. App. 674, 680-81, 720 P.2d 761, rev. den. 301 Or. 765, 726 P.2d 377 (1986)).[2] The court concluded that, because defendant's statements were "admissions" rather than "confessions," they did not require corroboration.[3]
*1081 The dissent below argued that there was no evidence in the record, aside from defendant's own declarations, that he had been driving. As to those declarations, the dissent argued:
88 Or. App. at 265, 744 P.2d 1321 (Young, J., dissenting) (citations omitted; footnote omitted). The dissent went on to point out that, even if defendant's statements were admissions rather than confessions, it is not clear that admissions can be used to corroborate a confession, citing State v. Lerch, 296 Or. 377, 398 n. 21, 677 P.2d 678 (1984). State v. Manzella, supra, 88 Or. App. at 265, 744 P.2d 1321. We allowed review to determine what constitutes a "confession" for the purpose of ORS 136.425(1).
We have held that ORS 136.425(1) requires the state to produce enough evidence apart from a confession, either direct or circumstantial, "from which the jury may draw an inference that tends to establish or prove that a crime has been committed." State v. Lerch, supra, 296 Or. at 398, 677 P.2d 678. Lerch was charged with the murder of a seven-year old boy whose body never was found. After the boy's disappearance, Lerch told his sisters that he had seen his duffel bag in a garbage dump box and that it had contained a body. He subsequently confessed to the police that he had strangled the boy and hidden the body in the dump box. This court did not decide whether Lerch's statements to his sisters would have been sufficient to corroborate his confession, because it found sufficient evidence, apart from those statements, to corroborate the confession. Id. 296 Or. at 398 n. 21, 677 P.2d 678.
In this case, the only evidence, apart from defendant's declarations, was the following: (1) Defendant was present at the scene of a reported automobile accident; and (2) Erickson checked defendant's driver license number.
The first item, standing alone, is insufficient. A jury could not infer that defendant had been driving from his mere presence on the street.
From the second item, a jury could conclude that defendant gave his driver license number to Erickson. Without more information, however, the jury could not infer the reason that he did so. For example, there was no evidence whether defendant volunteered the information or whether Erickson asked him for it. A witness at the scene of an accident, confronted with a uniformed police officer asking for identification, might well comply even if he had not been driving one of the vehicles involved in the accident. Because there is no evidence suggesting why defendant gave Erickson his license number, a jury could not infer that he did so because he had been driving. That evidence, standing alone, is not sufficient to establish the driving element of the corpus delicti for driving while suspended.
Because the state did not produce sufficient evidence, other than defendant's statements, to establish that a crime had been committed, this case squarely presents the issue left undecided in State v. Lerch, supra: whether some of defendant's statements to Erickson may suffice to corroborate his confession. Resolution of that issue depends on the definition of "confession," as that word is used in ORS 136.425(1).
The law of confessions and admissions currently is governed primarily by constitutional principles. The corroboration of confessions rule, however, is not grounded in constitutional law and has its roots in earlier times. A brief examination of the context from which it arose will help further *1082 our understanding of that rule and the Oregon statute enacted to further it.
The use of a criminal defendant's statements against him or her at trial passed through three stages before arriving at the present stage, which focuses on constitutional considerations. In the earliest stage, from approximately 1500 A.D. through the middle 1700s, English courts placed no restrictions on the use of extrajudicial statements of the accused in a criminal trial. Most notably, those statements were used without regard to whether they were obtained by coercion or threats, even of torture. III Wigmore, Evidence § 818 (Chadbourn rev 1970).
Beginning in the second half of the 1700s, courts began at least to recognize the unreliability of coerced confessions. See Warickshall's Case, 1 Leach Cr C 298 (1783). In practice, however, very few confessions appear to have been excluded on that ground. III Wigmore, Evidence § 819.
During the 1800s, there emerged what Dean Wigmore called "a general suspicion of all confessions, a prejudice against them as such, and an inclination to repudiate them upon the slightest pretext." III Wigmore 297, § 820. Wigmore offers the following three explanations for the "sentimental excesses" committed by 19th century English courts: (1) a growing recognition that most criminals were members of the lower classes, whose crimes frequently were the result of their "hopeless poverty" rather than inherent dishonesty, and who typically possessed a submissive attitude toward those in authority; (2) the absence of the right of appeal in criminal cases, which led nisi prius judges to err on the side of caution when asked to receive a confession into evidence; and (3) a criminal defendant's inability to testify or to be represented by counsel. III Wigmore § 820a. Wigmore notes that none of these considerations justify the decisions of 19th century American courts, which, for a time, followed the British example. Id.
Perhaps in response to the excesses of the 19th century, some American jurisdictions, including Oregon, adopted strict definitions of the word, "confession." These courts held that, although a "confession" was presumed to be involuntary and inadmissible, an "admission" was not. In State v. Howard, 102 Or. 431, 452, 203 P. 311 (1921), this court noted that "a confession which is actually or practically an acknowledgment of guilt is prima facie involuntary and imposes upon the state the burden of showing that it was not induced by threats or promises of favor." Admissions, however, "which while evidentiary in character are not confessions of guilt," were "prima facie voluntary." See also State v. Campbell, 73 Kan. 688, 696-701, 85 P. 784, (1906) (criminal defendant's exculpatory statements while testifying before the grand jury were admissions, not confessions, and, therefore, could be admitted into evidence against him without a preliminary showing that they were voluntarily made); State v. Romo, 66 Ariz. 174, 185 P.2d 757 (1947) (the rule against admission of evidence of a defendant's statements not voluntarily made applies only to "confessions," and not to statements against interest); State v. Gibson, 69 N.D. 70, 284 N.W. 209 (1939) (murder defendant signed a statement admitting that she had killed her husband to protect her daughter; the court held that the statement was not a "confession" because it could be taken as true and still not state a crime); State v. Lindsey, 26 N.M. 526, 194 P. 877 (1921) (defendant in bigamy case admitted that he had been married before and did not know whether he had been divorced from his first wife; because there was no express acknowledgment of a second marriage, the statement was not a confession; therefore, there was no need to hold a preliminary hearing to determine whether it was voluntarily made). These definitions are surprisingly uniform and, typically, established a distinction between "confessions" as acknowledgments of guilt and "admissions" as acknowledgments of fact.
The "corpus delicti" rule also emerged during this third period. English courts first began to recognize the rule during the early 1800s. VII Wigmore, Evidence § 2070 (Chadbourn rev 1978). The rule apparently arose in reaction to a few documented *1083 instances of false confessions.[4] However, it was applied sporadically and inconsistently in England, affording little guidance to courts and legislatures in the United States.[5] VII Wigmore, Evidence §§ 2070, 2071. Although the policy behind the rule has been the subject of extensive criticism,[6] virtually every state in this country has adopted some version of it.[7]
In its discussions of the rule, this court consistently has distinguished between "confessions" and "admissions." Most of those discussions were dicta. In at least one case, however, the distinction drawn between "admissions" and "confessions" supported the holding of the court.
In State v. Reinhart, 26 Or. 466, 477-78, 38 P. 822 (1895), a prosecution for embezzlement, the court stated:
*1084 The court concluded that the entries in the account books were sufficient to prove the corpus delicti. Id. 26 Or. at 479, 38 P. 822.
State v. Rogoway, 45 Or. 601, 610, 78 P. 987, 81 P. 234 (1905), a prosecution for arson, the defendant had told a witness that he had been smoking a cigar in bed, that he put it down and went to sleep and that "the next thing he knew he was awakened by smoke and flames." Id. The court relied on that statement to establish that the fire was "of incendiary origin," thereby corroborating the defendant's separate confession. Id.
In State v. Brinkley, 55 Or. 134, 104 P. 893, 105 P. 708 (1909), a prosecution for larceny of a calf, the defendant told witnesses "that he bought the four cows and three calves, that he butchered the three calves, so bought, and sold them to the butcher, that the dry cow was the `3S' cow, not the Boyce cow [whose calf allegedly was stolen] * * *." Id. 55 Or. at 142, 104 P. 893, 105 P. 708. The court held that those statements (which were corroborated by the testimony of witnesses who helped the defendant drive the cows and load the calves onto a wagon) "were statements of facts, not amounting to admissions of guilt, and hence do not come within the prohibition" of the corpus delicti rule. Id. 55 Or. at 142, 104 P. 893, 105 P. 708.
See also State v. Fong, 211 Or. 1, 314 P.2d 243 (1957) (victim's body found on a hillside, wrapped in blankets and tied up with rope; cause of death was barbiturate poisoning, and there was no apparent motive for suicide; that evidence held sufficient to establish that death was caused by the criminal agency of someone. In dictum, the court also suggested that the defendant's statements could corroborate her confession for the purpose of the corpus delicti rule); State v. Weston, 102 Or. 102, 115, 201 P. 1083 (1921) (declarations and admissions of the defendant, apart from his confession, afforded some proof of the corpus delicti; however, it is not clear which statements the court considered to be "admissions," and the defendant's conviction was reversed on other grounds); State v. Stevenson, 98 Or. 285, 291, 193 P. 1030 (1920) (prosecution for adultery; "confession" defined as "the voluntary admission or declaration made by a person who has committed a crime or misdemeanor, to another, of the agency or participation which he had in the same").
The state argues that the legislature has demonstrated an intent to retain the distinction between "confessions" and "admissions" for the purpose of ORS 136.425(1). In 1864, the Oregon legislature enacted the following version of the corpus delicti rule:
General Laws of Oregon, § 214 (Deady 1845-1864).[8]
That statute survived without material change until 1957, when the legislature added subsection (2) and inserted the words "or admission" to the first clause of subsection (1). Or. Laws 1957, c. 567, § 1 [HB 513]. As originally proposed, HB 513 also would have amended the second clause of subsection (1) to read: "[N]or is a confession or an admission of the defendant sufficient to warrant his conviction without some other proof that the crime has been committed." The House Judiciary Committee also amended the proposed bill to insert the words ", or both," between "defendant" and "sufficient." The Senate Judiciary Committee later deleted the words "or an admission of the defendant or both" from the proposed bill.[9] The bill was *1085 passed into law with the Senate amendments and has not been materially amended since that time. The present version of ORS 136.425(1) reads as follows:
This statute requires that the state produce "some evidence," other than the defendant's confession, that the crime charged has occurred. As a general rule, it is not necessary that the state produce independent evidence identifying the defendant as the one who caused the harm.[10]See, e.g., State v. Keller, 240 Or. 442, 451-52, 402 P.2d 521 (1965); State v. Paquin, 229 Or. 555, 560, 368 P.2d 85 (1962); State v. Henderson, 182 Or. 147, 191, 184 P.2d 392 (1947).
It has been argued that, at least for the purpose of the requirement of corroboration, the distinction between "admissions" and "confessions" is illogical, and that it is impossible to distinguish between the two terms with any degree of precision. See, e.g., Slough, Confessions and Admissions, 28 Fordham L Rev 96, 106-109 (1959); Comment, Corroborating Confessions: An Empirical Analysis of Legal Safeguards Against False Confessions, 1984 Wis L Rev 1121 (1984). See also Opper v. United States, 348 U.S. 84, 90, 75 S. Ct. 158, 162-63, 99 L. Ed. 101 (1954) ("We think that an accused's admissions of essential facts or elements of the crime, subsequent to the crime, are of the same character as confessions and that corroboration should be required * * *."); Smith v. United States, 348 U.S. 147, 155, 75 S. Ct. 194, 198-99, 99 L. Ed. 192 (1954) ("An admission which assumes this importance in the presentation of the prosecution's case should not go uncorroborated, and this is true whether we consider the statement an admission of one of the formal `elements' of the crime or of a fact subsidiary to the proof of these `elements.' It is the practical relation of the statement to the government's case which is crucial, not its theoretical relation to the definition of the offense.").
Those arguments have force. However, the corroboration of confessions rule is not a court-made rule in this state, and we are not free to adopt a version that conflicts with ORS 136.425(1). This court's practice of distinguishing between "admissions" and "confessions" for the purpose of ORS 136.425(1) has been consistent and longstanding. In light of that precedent, the 1957 legislature's rejection of the proposed addition of the words "or admission" in 1957, and its failure to amend the statute since that time, it seems clear that the legislature intended to distinguish between "confessions" and "admissions" for the purpose of the corroboration requirement.
The sole question remaining is whether any of this defendant's declarations qualify as "admissions" rather than "confessions." Because so many of this court's discussions of the distinction between those two terms have been dicta, it is difficult to distill from those cases any clear line dividing the two.
The state argues that a "confession" must include admissions of every material element of the crime charged. There is no support in our previous opinions for imposing such a requirement.[11] We decline *1086 to do so here, or to adopt any other definition of a "confession" that focuses on a statement's content; i.e., whether the thing confessed to is actually a crime, whether the speaker has acknowledged every "material" element of a crime, or whether the statements are "direct" acknowledgments of guilt or factual assertions from which guilt may be inferred. The definition of a "confession" should not depend on the speaker's ability, either through knowledge of criminal law or by pure accident, to recite every element of the crime charged.
Additionally, a content-based distinction simply is unworkable. It frequently is difficult to determine exactly what "elements" comprise the corpus delicti. The common law "corpus delicti" rule arose at a time when the elements of almost all crimes were relatively simple. As our society's definitions of crimes become increasingly more complex, such problems arise as whether the corpus delicti of felony murder includes the underlying felony, or whether the corpus delicti of a criminal RICO charge includes proof of all predicate acts. See McCormick, Evidence 367-68, § 145 (3rd ed 1984).[12]
In State v. Reinhart, supra, this court held that the defendant's bookkeeping entries were not a "confession" because the defendant was required to make the entries as part of his job; he did not make them for the purpose of acknowledging guilt. Thus, it appears that statements made for some purpose other than to acknowledge guilt, i.e., exculpatory statements or statements made as part of a person's employment duties, are not confessions. It follows, then, that a "confession" must have been made after the commission of the crime in question, for the purpose of acknowledging that the speaker is guilty of some criminal offense. If, in the course of the confession, the accused admits one or more elements of the crime charged, the state must produce "some other evidence" of that element.[13] With these guidelines in mind, we turn to the statements made in this case.
Defendant's statement that he knew he was driving in violation of his license restrictions was, without doubt, a confession. The disputed statement is defendant's assertion that he was rear-ended by another car while waiting to turn left. Defendant did not make that statement for the purpose of acknowledging guilt; he made it to further Erickson's investigation of an automobile accident. As long as that statement was not so closely related to his confession as to be a part of it, it does not require corroboration under ORS 136.425(1).
Defendant's statement was made at the beginning of Erickson's investigation. Afterward, there was a break while the officer checked the driver license number. It was only after the officer confronted him with the result of the driver license number check that defendant confessed. We hold that defendant's initial statement was not part of his confession. Therefore, the *1087 statement could be used to provide some proof, other than the confession, that defendant had been driving.
The decisions of the Court of Appeals and the trial court are affirmed.
[1] Although ORS 136.425(1) does not use the term, "corpus delicti," it codifies a version of the common law corpus delicti rule. For convenience, we refer to it as the "corroboration of confessions rule."
[2] State v. Allen did not involve the corroboration of confessions rule; rather, it involved the construction of a term in a plea agreement granting the defendant immunity from prosecution for all crimes "confessed to."
[3] The Court of Appeals also found corroboration in defendant's failure to protest upon receiving a citation for driving while suspended. 88 Or. App. at 263, 744 P.2d 1321. A review of the record reveals that the state produced no evidence regarding defendant's reaction, or lack of reaction, to receiving the citation. Therefore, the Court of Appeals' assumption that defendant failed to object was mere speculation and may not be used to corroborate his confession.
[4] One of the most famous of these was Perrys' Case, 14 How St Tr 1312 (1660). The supposed victim failed to return home one evening, and a search revealed only his hacked and bloody hat. A servant of the victim confessed that he, his brother and his mother had murdered the victim. The three were tried, convicted and executed on the strength of the victim's disappearance, the discovery of the hat and the servant's confession. A few years later, the victim reappeared, explaining that he had been kidnapped and held as a slave in Turkey. See Note, Proof of the Corpus Delicti Aliunde the Defendant's Confession, 103 U Pa L R 638, 638-39 (1955).
[5] The major source of confusion was the failure to distinguish between two variations of the corpus delicti rule. One variation required corroboration of the substance of the confession, e.g., that the crime had been committed. The other required only that the government produce evidence tending to establish the reliability of the confession. See McCormick, Evidence 366, § 145 (3d ed 1984).
[6] Many commentators argue that the corpus delicti rule is ineffective to ensure the reliability of confessions and that its purposes are better served by modern constitutional guarantees against the use of involuntary statements against the accused in a criminal trial. See, e.g., McCormick, Evidence, 370-71, § 145; Note, Confession Corroboration in New York: A Replacement for the Corpus Delicti Rule, 46 Fordham L Rev 1205, 1235 (1978); Developments in the Law Confessions, 79 Harv L Rev 938, 1084 (1966); Comment, Corroborating Confessions: An Empirical Analysis of Legal Safeguards Against False Confessions, 1984 Wis L Rev 1121, 1186-92 (1984); Comment, California's Corpus Delicti Rule: The Case for Review and Clarification, 20 UCLA L Rev 1055 (1973).
[7] The primary holdout, Massachusetts, recently adopted the rule. Commonwealth v. Forde, 392 Mass. 453, 466 N.E.2d 510 (1984). Wisconsin requires only "corroboration of any significant fact." Holt v. State, 17 Wis.2d 468, 480, 117 N.W.2d 626 (1963).
[8] Prior to 1864, a substantially similar provision was in effect. Oregon Code 1853, ch XXXVI, § 5.
[9] Senator Corbett indicated that the deletions were not made "for any particular reason except that they did not have sufficient time to discuss the policy involved." Minutes, Senate Judiciary Committee, May 18, 1957, p 2.
[10] This case is somewhat unusual in that defendant's identity as the driver is part of the corpus delicti. In a prosecution for driving while suspended, no crime is committed unless the defendant was the driver.
[11] In another context, this court has stated that a statement should not be considered a "confession" if "the facts admitted may have been taken as entirely true, and still be consistent with perfect innocence." State v. Porter, 32 Or. 135, 147, 49 P. 964 (1897). In that case, the defendant objected to jury instructions characterizing his extrajudicial statements as "confessions," arguing that he had not confessed and that the instructions might mislead the jury into believing that he had. See also State v. Heidenreich, 29 Or. 381, 45 P. 755 (1896) (defendant's exculpatory statements were not "confessions;" trial court erred in characterizing them as such in its jury instructions).
[12] Moreover, the use of a mechanical, content-based test could lead to results that the legislature is unlikely to have intended. Suppose, for example, a defendant confesses that he stole money from the pocket of an elderly man sleeping on a park bench. At trial, the victim, an elderly man, testifies that he was sitting on a park bench when the defendant approached him and struck him, knocking him unconscious. However, the victim cannot recall whether he had been carrying money on that day, and so cannot testify that any money was stolen. Under the rule proposed by the state, if the defendant is prosecuted for theft, his statement is a confession and, as such, will not support his conviction, because there is no other evidence to prove that anything was stolen. However, if the defendant is prosecuted for robbery, his statement is merely an admission, because he did not admit the use of force; the statement, therefore, would be admissible even in the absence of corroborating evidence.
Cf. State v. Fortune, 196 Iowa 995, 195 N.W. 740 (1923) (accused's statement that he robbed a store and took certain items not a "confession" to a charge of breaking and entering the store; therefore, the trial court did not err in refusing to give requested corpus delicti instruction).
[13] We emphasize, however, that all statements made during the course of a confession are protected by ORS 136.425(1). The state may not dissect a confession and use isolated statements to corroborate the "core" of the confession. | 373ac3f022b63f982f3b9bdbf6279e48998c717fbe52df55e56d253542b369b4 | 1988-07-26T00:00:00Z |
718b64b7-be74-40d5-a9f6-faf4afba8eb4 | Caveny v. ASHEIM | 202 Or. 195, 274 P.2d 281 | null | oregon | Oregon Supreme Court | Affirmed as modified; amended decree of September 18, 1953.
Original decree as amended by decree of July 21, 1953.
Reversed; writ of mandamus dismissed; suit remanded September 22, 1954.
*200 Jay E. Jordan, of Portland, argued the cause for appellants and petitioners-relators Bernard Asheim and Gable Park, Inc. With him on the briefs were Hickson and Dent, of Portland.
Scott M. Kelley, of Portland, and James K. Gardner, of Hillsboro, argued the cause for respondents. With them on the brief were Kelley and Kelley, of Portland.
Before LATOURETTE, Chief Justice, and WARNER, ROSSMAN, LUSK, BRAND and PERRY, Justices.
ORIGINAL DECREE AS AMENDED BY DECREE OF JULY 21, 1953, AFFIRMED AS MODIFIED; AMENDED DECREE OF SEPTEMBER 18, 1953, REVERSED; WRIT OF MANDAMUS DISMISSED; SUIT REMANDED.
WARNER, J.
This matter is unique in that it brings for our consideration as one matter two appeals and a petition for a writ of mandamus, all springing from the same case and here consolidated for argument and final disposition.
The salient facts requisite for an understanding of the instant controversy arise out of a contract made on August 18, 1948. It was an agreement for the sale and purchase of residential property in an *201 area known as Gable Park in Washington county. The purchasers were Ednamae F. Caveny, plaintiff in the suit hereinafter referred to, and her now deceased husband, Kasper P. Caveny. They went into immediate possession, notwithstanding that certain work remained to be done by the seller on the dwelling. The defendant Gable Park, Inc., a corporation, was the record owner and seller. The defendants Bernard Asheim and William C. Robison were copartners doing business as Robison Realty Co., and as realty brokers were agents for Gable Park, Inc., in negotiating and closing the sale of the property to the Cavenys. Asheim of the partnership was also president of Gable Park, Inc.; and another defendant, The Travelers Insurance Company, a corporation, was the owner and holder of a note executed by the defendant Gable Park, Inc., in favor of the insurance company for the sum of $15,000, payable in monthly installments, and secured by a mortgage which was a first lien upon the property purchased by the Cavenys.
The agreement of the seller for which plaintiff seeks specific performance is comprehended within a document denominated an "Earnest Money Receipt", the pertinent portions of which are as follows:
In the interest of clarity we will reiterate certain provisions of the agreement which contribute to the divergent viewpoints.
The seller covenanted to deliver a marketable title free and clear of all liens and encumbrances. A building on the premises was to be completed by the seller and the property was to be landscaped. The last payment on the purchase price, except for $1,000, was to be made "upon acceptance of title and delivery of deed" and the reserved $1,000 referred to was "payable upon acceptance by purchaser on completion." All but the $1,000 had been paid on the purchase price by October 1948.
The defendant Gable Park, Inc., having failed to secure a release of the mortgage lien of the insurance company or deliver plaintiff a deed, plaintiff brought a suit for specific performance on October 24, 1952, and, among other things, sought to have the defendants *203 Robison and Asheim declared to be trustees for the sums of the purchase price which were paid to them by the purchasers and which, plaintiff says, should have been applied by the defendants to the extinguishment of the mortgage lien.
After trial a decree was entered on July 8, 1953, wherein the court found for plaintiff. It directed specific performance of the contract and delivery of a deed as required by the sales agreement. It also required plaintiff to pay $800 into court for payment by the clerk to the defendants Asheim, Robison and Gable Park, Inc., upon receipt by the clerk of a satisfaction of the insurance company's mortgage.
On July 21, 1953, the court made and filed an amended decree which in effect added to the former decree a provision declaring that the three defendants last above named were trustees of the money received from the purchasers for the purpose of paying the insurance company.
On September 4, 1953, the defendants Asheim and Gable Park, Inc., gave notice of appeal from the decree of July 8 and the amended decree of July 21. That proceeding we will hereinafter refer to as the first appeal.
Thereafter, on the 18th day of September, 1953, the court entered a further or third amending decree. This determined the extent of the trust monies held by the defendants Asheim, Robison and Gable Park, Inc., to be $11,856.04. This was the amount then due on the insurance company's mortgage. This last decree also gave plaintiff a personal judgment against the three named defendants in the same amount, i.e., $11,856.04. Plaintiff's motion, which resulted in the last amended decree, asked for this personal judgment as "alternative relief", but the amended decree does *204 not so describe or limit it. All decrees subsequent to the first one were entered without notice to defendants.
On September 19 and 21, 1953, executions were issued on the judgment and decree as amended on September 18. These were promptly followed by motions of the defendants Asheim and Gable Park, Inc., to vacate the last decree and to quash the executions issued thereon. These motions were denied by the court's order of September 29.
On November 18, 1953, the same two defendants heretofore appealing filed notice of appeal from the amended decree of September 18. This proceeding we hereinafter refer to as the second appeal.
The third matter stemming from the Caveny suit in this court is the petition for a writ of mandamus filed in this court in December 1953 by the defendants Asheim and Gable Park, Inc., against the judge of the circuit court of Washington county directing him to vacate the decree dated September 18, 1953, and to quash all writs of execution issued thereunder. To the return made to the alternative writ, the petitioners demurred.
The issues are few and the facts are simple. The parties are in accord as to the amounts paid upon the purchase price. They agree that the balance of $1,000 is withheld by plaintiff to insure completion of the house. The contract so indicates, and the testimony of the president of the vendor corporation confirms, that the Cavenys as purchasers were to have a title free and clear of encumbrances. There is no dispute that the mortgage lien of The Travelers Insurance Company has never been released of record. The principal difference between the parties arises from whether the house has been completed in accordance *205 with the specifications. The defendants claim that it has. The plaintiff asserts that it has not been completed in several particulars. Her main contention is that a third coat of paint was never applied on the outside. Although she alleges other deficiencies, the lower court found that the vendor's default was in the failure to apply the paint and allowed an abatement to plaintiff for that reason. The defendants contest that allowance.
Notwithstanding the relative simplicity of the issues, the real controversy centers on the character and extent of the relief which plaintiff should be accorded in her suit for specific performance. Our task in making this determination is materially complicated by the fact that the court made three separate decrees, hereinabove referred to. The last two each modify the one immediately preceding it.
The first question for solution is whether or not the circuit court had jurisdiction to enter the amended decree of September 18. This challenge is raised by the second appeal and is also made the ground for the relief sought by the petition for the writ. If resolved against the lower court, then the matters raised by the second appeal are concluded and the petitioners will not be entitled to a peremptory writ according them the relief which they seek by their petition.
We have already noted the substance of the decrees of July 1953. These July decrees, taken together, furnish the basis for the first appeal. At this point, however, we will consider only the third and last decree as entered by the lower court on September 18, 14 days after notice of appeal from the July decrees *206 had been served and filed. This later amendment, as we have observed, fixed the amount of the trust monies held by the defendants Asheim, Robison and Gable Park, Inc., at $11,856.04 and gave plaintiff a personal judgment against the last named defendants in the same amount.
This last decree not only provoked the application for writ of mandamus but also furnished the basis for the second appeal. The question presented by the second appeal is, as we have said, solely jurisdictional. It is: Did the lower court have the authority to amend the July decrees in the manner and for the purposes for which the amendment was made, after the appellants had given notice of appeal from the July decrees?
The appellants argue that this court obtained exclusive jurisdiction with reference to the July decrees upon the filing of the notice of appeal therefrom on September 4 and that the decree of September 18 in modification was an absolute nullity because the circuit court had lost authority to make the same.
The plaintiff takes the novel position that under ORS 19.040 "A notice of appeal to the Supreme Court does not stay proceedings in the Circuit Court, unless: (a) Supersedeas bond is filed; (b) Circuit Court orders a stay; [or] (c) Supreme Court orders a stay." Her argument is that the defendants have not obtained either a stay order or a supersedeas bond, and it therefore follows that since "The decree as finally amended was within the term of court * * * the Circuit Court had power to amend its decree even though an appeal was pending." It is apparent that plaintiff has misconceived the effect and scope of a supersedeas or a "stay or proceedings".
At common law a writ of error operated per se *207 as a supersedeas and prevented the issuance of execution to enforce the judgment, and the same effect was also given to an appeal in chancery. See Helms Groover & Dubber Co. v. Copenhagen, 93 Or 410, 415, 177 P 935. Today our statutes (ORS 19.030 to 19.050) require that, in the absence of an order from the court, in all but a few enumerated cases a sufficient undertaking must first be filed before the judgment or decree is superseded. Blair v. Blair, 199 Or 273, 285, 247 P2d 883, 260 P2d 960; In re Workman's Estate, 156 Or 333, 386, 65 P2d 1395, 68 P2d 479. As we said in Sakraida v. Sakraida, 192 Or 217, 222, 217 P2d 242, 233 P2d 762, "the only purpose of a stay bond is to `stay the proceedings' in the court below."
1. The office of a "stay of proceedings" was early defined in this state as being tantamount to a writ of supersedeas, "the effect of which is to suspend the enforcement of a judgment until it can be reviewed on appeal." State ex rel. v. Small, 49 Or 595, 598, 90 P 1110; 40 Words & Phrases 116.
2. We find no merit in plaintiff's thesis that in the absence of a supersedeas bond or stay order, the circuit court, if acting in term time, enjoys a continuing and unlimited authority to modify or amend a previously-given judgment or decree after a disappointed party has given notice of appeal therefrom. In so saying, however, we recognize that the lower court does have some power to make certain corrections and changes after notice of appeal has been given; but this right is, as we will later see, a limited one which in proper cases can be exercised notwithstanding the character of the appeal bond filed or the existence or nonexistence of a stay order. The question here is thus narrowed to whether or not the lower court had jurisdiction to amend its July decree to the extent attempted *208 by the last or September decree, that is, so as to alter substantially the rights and equities of the parties.
3. The pertinent statute (ORS 19.030[3]) provides that "Upon notice of appeal being given, and entered in the journal of the court or filed with the clerk, as the case may be, the appellate court shall have jurisdiction of the cause and not otherwise." See Pond v. Jantzen Knitting Mills, 187 Or 697, 700, 180 P2d 115. However, we find in Cranston v. Stanfield et al., 123 Or 314, 319, 261 P 52, that the mere fact this court has acquired jurisdiction of the appeal does not deprive the lower court of all jurisdiction over its own record. In support of this proposition, we adopted with approval in the Cranston case the following statement found in 2 RCL, Appeal and Error § 95, reading:
Mr. Justice ROSSMAN in the Cranston case analyzes the application of the foregoing rule as it was made *209 in Helms Groover & Dubber Co. v. Copenhagen, supra; St. Helens Lumber Co. v. Evans, 90 Or 71, 175 P 612; Oregon-Wash. Co. v. School Dist. No. 25, 89 Or 7, 173 P 261; Brewster v. Springer, 79 Or 88, 154 P 418; and State ex rel. v. Estes, 34 Or 196, 51 P 77, 52 P 571, 55 P 25, representing the leading cases in this jurisdiction treating with the power of the lower court to make changes in its record after this court has acquired jurisdiction of an appeal therefrom. From that analysis, as well as the holding in Cranston v. Stanfield et al., supra, we are taught that the reason for continuing authority in the lower court to correct its record to conform to the truth is that "it is deemed wiser to correct a record than to reverse the case and thus cause the parties to set in motion from the beginning the ponderous machinery of a new trial." Cranston v. Stanfield et al., supra, at page 321. Also see Oregon-Wash. Co. v. School Dist. No. 25, supra, at page 9.
Without departing from the rule laid down in the Cranston case with respect to the lower court's power to correct its record and without criticizing the court's analysis of Oregon-Wash. Co. v. School Dist. No. 25, supra, as made in the Cranston case, we deem it pertinent to note a unique condition prevailing in the Oregon-Washington Co. case not present in the other cases referred to by Mr. Justice ROSSMAN. In that case the defendant appellants moved in the lower court to vacate the findings and resultant adverse consent decree. Pending a decision on appellants' motion, the school district perfected its appeal. Subsequently, but prior to the hearing of the appeal, the trial court ruled favorably for defendants on their motion, set aside its decree and entered another decree in lieu thereof which tended to show that it also had been authorized by consent. The effect of the second decree *210 apparently did not enlarge or diminish any rights or remedies accruing under the first vacated decree but merely made "more concise directions about the extent of the proposed [school] building and limiting the cost thereof to the sum of nine thousand dollars [the same amount found in the first decree]." (89 Or 8)
It should be noted that although we find the court in Oregon-Wash. Co. v. School Dist. No. 25, supra, entering a later decree in place of its original decree upon which an appeal was then pending and, mechanically at least, following the pattern of the lower court in the instant matter, yet these marked differences distinguish the earlier case from the one at bar: first, the net result of the court's action in the Oregon-Washington Co. case was to make the second decree conform to what the parties had actually and previously consented to, in short, to conform to the truth; and, second, the correcting decree was made with the consent of the parties, rendering the first appeal academic and moot. Following the rule set forth in Brewster v. Springer, supra, we dismissed the defendants' appeal, thus declining to listen to an appeal from a decree vacated in response to appellants' own motion and well knowing we could do no more to correct the situation than had already been accomplished by the trial court.
4. As far as we are presently advised, this court has not yet recognized a right in the circuit court to change any part of its record after this court has acquired appellate jurisdiction in a given matter, except for the express purpose of making its record speak the truth as to matters and things transpiring prior to the entry of its original judgment or decree. Such is the tenor of Cranston v. Stanfield et al., supra, and we adhere to it.
*211 State v. Kleckner et al., 116 Or 371, 373, 239 P 817, 240 P 1115, gives emphasis to that conclusion. In the Kleckner case, after judgment and while the appeal therefrom was pending in this court, the plaintiff caused a second summons and complaint to be served on each of the defendants. A special appearance was made to quash this later service on the ground that the lower court had lost jurisdiction by reason of the pending appeal, notwithstanding a judgment was again entered by the lower court having the same import as that previously rendered. In disposing of this matter Mr. Justice BELT said:
5. The effect of the amending decree of September 18, 1953, was not to correct the court's record to conform to the truth but to enlarge plaintiff's relief beyond the bounds of her pleadings and beyond the court's right to do so as a matter of law. The last decree, as has been pointed out, attempted to give plaintiff additional and further relief by declaring the defendants Asheim, Robison and Gable Park, Inc., *212 to be trustees of the sum of $11,856.04 for the use and benefit of The Travelers Insurance Co. It also gave plaintiff a personal judgment against these defendants for the same amount. The decree of September 18 is void.
6, 7. We now give attention to the petition in mandamus of Bernard Asheim and Gable Park, Inc., two of the defendants in the suit for specific performance. This was filed in this court on November 5, 1953, 13 days prior to giving notice of the second appeal.
The relief sought by the mandamus proceeding was for the issuance of a peremptory writ directing the circuit court of Washington county to vacate the decree and judgment entered on September 18, 1953, and requiring it to quash all executions issued pursuant thereto. The grounds therefor are identical to those assigned as error for the entry of the second amended decree. In this court the argument in the mandamus matter was predicated upon petitioners' demurrer to the defendant circuit court's return to the alternative writ.
The conclusions which we have reached with respect to the second appeal, resulting in a declaration that the decree of September 1953 is void for want of jurisdiction, render the pending application for a peremptory writ of mandamus moot in that the same results sought by the writ are achieved in that holding. Moreover, as we now review the record, we are impressed that we improvidently took jurisdiction of the application for the writ in the first instance, it being then demonstratable that the petitioners had an adequate remedy at law for the various matters which occasioned the application for mandamus, one of them *213 being the availability of supersedeas. The writ will, for these reasons, be dismissed.
Notice of the first appeal was filed on September 4, 1953. It was an appeal from the original decree entered in this cause on July 8, 1953, and also the amending decree of July 21, 1953.
The decree as amended on July 21 is, except as hereinafter noted, identical with the decree of July 8. The clauses of the decree in its amended form which are challenged by the notice of appeal read:
*214 Clauses 3 and 5 of the decree are here omitted for the reason that they are expressly excepted from the notice of the first appeal. The amendments made to the decree of July 8 by the decree of July 21 and reflected above were (a) the addition of the words "cause said mortgage to be paid" in Clause 1 and (b) the addition of Clause 4 as a new provision. We shall hereinafter refer to both July decrees as the first decree.
We will now consider the assignments of error directed against the first decree as it appears above.
The record indicates, and it was so found by the lower court, that the purchasers had paid to the appellants the sum of $27,500 upon the agreed purchase price of $28,500. The balance of $1,000 was withheld, as we have noted, because of a dispute as to whether or not the house had been completed in accordance with the specifications. This prompts us to revert again to the contract and note that the schedule of payments contemplated that the last payment of $1,000 was payable only "upon acceptance by purchaser on completion."
Prior to the institution of the instant suit, the seller had never attempted, nor even offered, to fulfill its part of the bargain by discharging the record encumbrance in favor of The Travelers Insurance Company, nor did the seller ever tender a deed as required by ORS 19.040(2) as a step in perfecting his first appeal. We again refer to the sales agreement and point to that portion thereof which mandated the seller to deliver an acceptable title and deed coincident with receipt from the purchasers of an amount of money representing a total payment of $27,500 on the purchase price. That stage in the transaction was reached on the part of the Cavenys as purchasers *215 some time in October 1948, nearly four years before this suit for specific performance was brought.
Appellants' principal argument runs thus: The complaint is limited to a suit for complete, as against partial, specific performance. The court, in order to give complete specific performance, has followed the terms of the contract literally and directed, among other things, the seller to "cause said mortgage to be paid". This, appellants say, but without citation to authority, is "unheard of in the law" in that it necessitates a direction to pay money to a third person. The appellants assert that if this premise is correct, then, as an alternative, the decree must necessarily be one for partial specific performance, i.e., for delivery of the deed and with judgment to compensate for the continuing presence of the unsatisfied encumbrance; but, they argue, the complaint is insufficient to support such a compensatory grant because of the want of an allegation warranting such form of money relief. However, the appellants continue, should the court hold the complaint sufficient for that purpose, i.e., partial specific performance and compensation, then plaintiff is still not entitled to such compensatory relief because the Cavenys as purchasers had prior knowledge of the existence of the insurance company's mortgage. We think appellants' argument is without merit when applied to the facts in the instant matter.
In Maupin, Marketable Title to Real Estate 3d ed, 523, § 193, we find it said that "If the objection to the title be one which the vendor can remove, he will be required to remove it." Here the objection springs from the unpaid mortgage to the insurance company. It is one that the vendor-mortgagor can remove by payment. The mortgagee has long since indicated its willingness to accept funds "to pay the *216 * * * loan in full without penalty with interest computed to the day of payment." Moreover, plaintiff and her husband more than four years ago placed in the hands of the appealing defendants as payments on the purchase price far more money than necessary to release the lien of the insurance company's mortgage.
The authority for the Maupin statement rests upon Ogooshevitz v. Arnold, 197 Mich 203, 163 NW 946. In that case the vendor was required by a decree of specific performance "to make clear the record title" by appropriate proceedings because it was within the power of the defendants to do so, citing Brin v. Michalski, 188 Mich 400, 154 NW 110. "Appropriate proceedings" in the Ogooshevitz case necessitated a probate to bar any potential claims of creditors of a prior decedent owner of the title.
The rule that makes it the duty of a vendor to clear his title in accordance with his obligations to the vendee, when the encumbrance is one that can be removed, is a precept that equity will enforce by specific performance, even when the mandate requires payment of money to a third person. It is made even more evident in Brin v. Michalski, supra, relied upon as the controlling authority in the Ogooshevitz case. There the defendants Michalski were the vendors. At the time of their sale agreement with the vendee (Mrs. Brin's assignor) the Michalskis as vendors were purchasing the property under a conditional sale contract. To complete performance on their part, all that remained to be done was to perfect their title and deliver a deed. The court held that although the defendants did not hold the legal title, and had only a contract for the purchase of a tract of land on which more than half the purchase price was paid, specific performance *217 of their agreement to sell the parcel might be enforced when, as there, it was within their power to obtain title. Thus in the Brin case the decree compelled the Michalskis, as plaintiff's vendors, to pay money to a third person, namely, one Skotzke, vendor under their contract, to complete their purchase of the parcel which they had in turn contracted to sell to one Feldman, a prior owner of the purchaser's interest later assigned to Mrs. Brin. Also see Litzau v. Shimkewich, 286 Mich 92, 281 NW 549.
The same principle is applicable to the liquidation of mortgage liens when the vendor has covenanted to convey property, as here, free and clear of encumbrances. This is so recognized in Maupin, Marketable Title to Real Estate, supra, where it is said, at page 524: "The purchaser may, of course, file his bill requiring the vendor to remove an encumbrance from the premises, unless the purchase was made subject to encumbrances." Also see Bennett v. Abrams, 41 Barb (NY) 619, 625.
No compensatory relief was accorded plaintiff by the first decree; but, notwithstanding, we think it is appropriate to give the subject some attention here. The lower court was evidently impressed with the need therefor when it granted a money judgment against the defendants by the amending decree of September 1953. We, too, feel that there may be a need therefor and deem it in order to challenge appellants' assertion that the lower court cannot grant such relief under the pleadings as drawn; and we intend to provide later a means therefor as a matter of alternative relief.
9. By thus challenging the sufficiency of the complaint, appellants display a misconception of the nature of equitable compensation available to a vendee. They read equitable compensation, a species of substitute *218 relief sometimes awarded in suits for specific performance, as synonymous with damages for breach of contract given in law. Although similar in character, they are not in fact identical remedies; they arise from different motives and are based upon different principles.
10. We give heed to what is said in Pomeroy, Specific Performance of Contracts 3d ed, 902, § 436. It reads:
Reference to the foregoing statement from Pomeroy is made by Mr. Justice BAILEY with approval in Van Horn Construct'n Corp. v. Joy et ux., 186 Or 473, 481, 207 P2d 157.
11. Compensation as incidental relief is especially *219 appropriate when complete specific performance is not available; and as an allowance to be made for any deficiency as to the quantity, quality, or description of the property, when it is clear that jurisdiction properly attaches in equity, compensation flows and is inseparable from the proper relief. 2 Story, Equity Jurisprudence 14th ed, 476, § 1085; Pomeroy, Specific Performance of Contracts, supra, 900-902, §§ 434-435; Waterman, Specific Performance of Contracts, 699, § 499; 49 Am Jur 123, Specific Performance § 105; 81 CJS 448, Specific Performance § 21(2a).
The rule as thus announced by the foregoing text writers cited has been approved in Van Horn Construct'n Corp. v. Joy et ux., supra, at pages 480 et seq. Also see Walker v. Mackey et al., 197 Or 197, 209, 251 P2d 118, 253 P2d 280; Bartholomew v. Bason, 188 Or 550, 552, 214 P2d 352.
12. In Fry, Specific Performance 6th ed, 587 §§ 1267-1268, under the subject of "Compensation", is found an excellent statement of the rule as made in Barker v. Cox, 4 Ch D 464, 469 (1876) reading:
Fry then proceeds to observe that "It is obvious that, in this proceeding, the Court is executing the contract, cy pres * * *."
*220 13. The question of the sufficiency of the prayer of plaintiff's complaint in the instant suit is answered by Waterman, Specific Performance of Contracts, supra, 702, § 500, as follows:
Also see Fry, Specific Performance, supra, 567, § 1211.
In Walker v. Mackey et al., supra, the bill for specific performance contained a prayer similar to that in the instant case. Finding enforcement of the contract for the sale of real property impossible due to a state highway right-of-way across the land, the court awarded plaintiff complete compensation in lieu of enforcement.
14, 15. It should be remembered that specific performance is not a matter of right but depends upon the exercise of the chancellor's discretion. McDonough v. Southern Or. Mining Co., 177 Or 136, 155, 159 P2d 829, 161 P2d 786, 164 ALR 788. It follows as a self-evident corollary that if a court of equity is vested with the power to refuse complete performance in specie, it can with equal propriety grant relief in the form of partial specific performance and compensation or abatement when and where specific performance would work a hardship or prove impracticable or impossible. 81 CJS 783, Specific Performance § 163(d).
16. The propriety of granting compensatory relief when it appears proper in a given case is recognized in Van Horn Construct'n Corp. v. Joy et ux., supra, *221 where this court cites with approval, at page 487, the following statement from Peeler v. Levy, 26 NJ Eq 330:
17. We are content that, notwithstanding the absence of a prayer for partial performance and compensation in lieu of complete specific performance, we can and should, in view of the status of the record, here give opportunity to apply such relief in the lower court, provided plaintiff is not otherwise barred by the law from enjoying such a benefit.
Appellants contend that is precisely plaintiff's position. They say in substance that even if the court can grant her compensatory relief, the pleadings being as they are, the court is nonetheless barred from so doing by the fact that plaintiff and her husband as purchasers had knowledge of the mortgage lien in favor of The Travelers Insurance Company when they made their contract with Gable Park, Inc., and that such knowledge is a barrier to compensatory relief and, we add, if true, would bar a decree for performance in specie.
18. A statement of the general rule upon which appellants reply is found in Wetherby v. Griswold, 75 Or 468, 475, 147 P 388. There this court quotes with approval the following from 36 Cyc 742: "`If the purchaser at the time of entering into the contract was aware of the defect in the vendor's interest or title, or deficiency in the subject-matter, he is not, on suing for specific performance, entitled to any compensation or abatement of price.'" To the same effect *222 also see Pomeroy, Specific Performance of Contracts, supra, 912, § 442; Waterman, Specific Performance of Contracts, supra, 714, § 506; Fry, Specific Performance, supra, 588, § 1271; 49 Am Jur 125, Specific Performance § 106; 81 CJS 450, Specific Performance § 21.
Among the cogent and persuasive reasons assigned for the rule as stated by the above authorities is that the sale was intended by the parties to include only such an interest in the property as the vendor possessed and, if encumbered, it is presumed that in fixing the purchase price, the existence of the encumbrance was taken into consideration.
However, the rule upon which appellants place such sturdy reliance is not as harsh and inflexible as appellants would have us believe. It has some salutary exceptions. One is particularly applicable here.
19. Whether the plaintiff and her husband as purchasers were actually cognizant of the existence of the insurance company's mortgage, or any other encumbrance, at the time they entered into the purchase and sale agreement with the owner becomes, in our opinion, an immaterial circumstance in view of the facts prevailing in the case at bar.
The weakness of appellants' argument for application of the rule lies in the fact that here the contract between the parties expressly provides that the owner will convey to the Cavenys "by good and sufficient deed free and clear of all liens and encumbrances to date except zoning ordinances * * *." We also read, "Incumbrances to be discharged by owner may be paid at his option out of purchase money at the date of closing." Asheim, president of the defendant owner, Gable Park, Inc., by his testimony indicates that the title to the Cavenys was to be clear of the insurance company's mortgage.
*223 The agreement between Gable Park, Inc., and the Cavenys precludes any need for speculation as to whether or not the Cavenys with their knowledge of the mortgage on August 18, 1948 (if, in fact, they had such knowledge) assumed the insurance company's mortgage as a part of the purchase price so as to preclude them from compensatory relief in a suit for specific performance.
20. Under the circumstances here present, we think the applicable and controlling rule, which is in the nature of an exception to the general rule depended upon by appellants, is well stated in Maupin, Marketable Title to Real Estate, supra, 207, § 85-a, and we unhesitatingly adopt it as our own. It reads:
Sanford v. Wheelan, 12 Or 301, 306, 7 P 324, was a suit for specific performance of a contract with a provision similar to the one obligating the vendor in the case at bar, that is, it imposed on Sanford, the respondent vendor, the duty to convey to Wheelan, the appellant vendee, "by a good and sufficient warranty deed of release and quit claim, free from all *224 encumbrances". The property in that case was burdened with several mortgage liens. There, as here, vendor's counsel urged the same general rule of exoneration that appellants here stress as a bar to plaintiff's right to compensation in this matter. At page 307 this court said:
In the words of Maupin, Marketable Title to Real Estate, supra, we find that the contract between the parties expressly provided that the vendor should convey the premises free from encumbrances; and it was, therefore, immaterial whether the Cavenys as purchasers had notice at the time of the contract that there was an encumbrance on the property.
21. The amending decree of July 21 was responsible for the fourth clause of the first decree now under *225 review. The appealing defendants and the defendant Robison are there declared trustees "of the money paid to them by the plaintiff and her husband for the purpose of paying The Travelers Insurance Company." The appellants very properly assert that there is no evidence of an express trust. It is therefore presumed that the claim of trust is predicated upon a theory of resulting trust; but there is no proof that money was delivered to the defendants for any purpose other than to liquidate the purchasers' obligation under the sales agreement. The payments were not conditioned or limited in any manner. Indeed, the contract by its terms makes it optional with the seller whether to use the purchase money for the purpose of releasing any encumbrance which the seller has covenanted to clear. The most persuasive reason for discarding the declaration of the existence of a trust for the use and benefit of the insurance company is plaintiff's earnest representation that neither she nor her husband had any knowledge of the existence of the insurance company's mortgage until after they had completed payment of $27,500 on the purchase price in October 1948. We are of the opinion that neither the evidence nor the pleadings warrant the creation of a trust for the benefit of the insurance company as to any part of the money paid by the purchasers to the defendants or either of them and that Clause 4 should be stricken.
22. We take notice of appellants' challenge to Clause 2 of the first decree wherein the plaintiff is directed to pay the sum of $800 to the clerk of the court for ultimate delivery to the defendant Gable Park, Inc., when that company has evidenced its compliance with the decree for specific performance by filing with the clerk the various instruments therein directed. The $800 referred to is the $1,000 due on the purchase price *226 and payable upon acceptance of the building "on completion" as per specifications. The deduction of $200 is withheld or abated to compensate plaintiff for the cost of the omitted coat of paint.
Whether the defendant owner was in default in this respect is a debatable question. Evidently the lower court was so persuaded, and we will accept its judgment, that Gable Park, Inc., was remiss in that particular; but a search of the record fails to reveal one iota of evidence, or any offer of evidence, upon which the lower court or this court can affirmatively conclude that such a third coat of paint would cost $1 or $1,000. We find absolutely nothing to justify the use of $200 or any other sum as the proper measure of abatement.
Indeed, the court at the conclusion of the trial expressed itself as being in a quandary on the point saying:
We think that as the record presently stands, there is no foundation for an abatement in the amount of $200, even though we concede that plaintiff is entitled to compensation for the unfinished painting job. That part of the decree will be stricken and the matter remanded to the lower court to take further evidence *227 as to the cost of this painting job; and thereafter plaintiff should be allowed an abatement for the insufficient paint job as appears to be warranted thereby.
Appellants press upon our attention several other matters of lesser import in challenge to the first decree. All have received our consideration. Some involve clauses of the decree from which no appeal is taken. The answers to certain alleged errors are comprehended within what we have hereinabove said with reference to other points raised.
Viewing the record in its entirety, we think the appealing defendants have dealt with plaintiff and her husband, as purchasers, in a very shabby and very inequitable manner. We realize, however, that we cannot devise a formula that will insure her against further outlays which may be necessary to circumvent a foreclosure threatened by the vendor's failure to meet its obligations.
Preliminary to our directions as to the modifications which the facts dictate should be made in the decree, we pause here to observe that we can foresee that the remedy of compulsory action to enforce the specific performance directed by the first clause of the decree by proceedings in contempt may prove fatuous or futile by reason of conditions not now known to the court or not yet arisen and, if permitted to stand as plaintiff's sole remedy herein, may result in greater financial loss to her, if, for example, the insurance company filed suit to foreclose its mortgage prior to the time the defendants had arranged to satisfy it.
23, 24. Justification for an award of equitable compensation in the alternative follows when a court, in the exercise of its discretion, refuses enforcement in specie, because such enforcement would work a great hardship or would be useless or impracticable or would *228 involve difficulties. 81 CJS 783, Specific Performance § 163(d). Also see Public Market Co. v. Portland, 171 Or 522, 595, 130 P2d 624, 138 P2d 916; Oregon Growers' Co-op Assn. v. Riddle, 116 Or 562, 569, 241 P 1011. Such an award may be given in the alternative, i.e., defendant may elect either to comply with the decree and pay the compensation or to perform the contract himself, thus nullifying the mandate. Hook v. Ross, 1 Hen & M 310, 11 Va 318; 81 CJS 784, Specific Performance § 163(f).
Allowing compensation in furtherance of partial specific enforcement of the contract is perhaps best exemplified and distinguished from damages by the facts in the instant case. If the defendants are unable to complete their bargain by removing the encumbrance, it would be a vain thing for equity to coerce performance by personal process. Likewise, it might be unjust to award plaintiff a mere money judgment, leaving defendants exposed to unmerited hardship by plaintiff's failure to appropriate the proceeds to the contract. The defendant Gable Park, Inc., and such of the other appealing defendants as may be liable for the mortgage debt, would thus be subjected to a potential double liability, i.e., a judgment in favor of plaintiff and a like judgment for the same amount to the insurance company mortgagee in the event of a foreclosure. In order to maintain the contract rights inviolate, equity will apply the proceeds of the judgment itself, i.e., retain the money received on execution and pay it directly to the mortgage lienholder. If the obligors will not or cannot perform, equity, in extending its specific assistance, thus will perform the contract for them as far as it is able without altering the terms or obligations of the agreement.
We will, therefore, direct that the modified original *229 decree which follows provide that the circuit court may, in its discretion, enter an award of equitable compensation against the defendants upon application of the plaintiff or upon its own motion, reserving, however, to the defendants the right to perform specifically by securing a release of the lien of the insurance company's mortgage.
It is a situation which dictates the more or less complicated form of decree which we think necessary, made so by our conscious effort to avoid the possibility of subjecting the defendants to double liability in the event the court enters a judgment against them in lieu of relief in specie.
In our opening statement we pointed out that this matter is mechanically unique in that it speaks to and disposes of three separate propositions, all springing from the same set of facts but here presented substantially as three appeals. We refer to the two appeals from the two decrees taken by defendants and their application for a writ of mandamus. This, we think, warrants in conclusion a recapitulation of our final judgments predicated upon the entire record now before us. These are:
1. That the decree of September 18, 1953, be vacated.
2. That the mandamus proceeding be dismissed.
3. That the first decree, that is, the decree of July 8 as amended by the decree of July 21, 1953, be affirmed as modified in the manner hereinafter indicated.
We can better simplify and clarify our thought with respect to what we deem the appropriate and *230 necessary changes in the original decree by setting them up here in more detail than would be ordinarily usual in a matter of this kind. We will refer to clauses as they are numbered in the decree of July 21. The modifications and changes which seem to be dictated are:
1. Leave Clauses 1, 3 and 5 as written.
2. After taking further testimony to determine the cost of painting plaintiff's house in accordance with the specifications, amend Clause 2 by requiring plaintiff to pay to the clerk of the court the sum of $1,000, the amount of the purchase price withheld to insure the vendor's compliance with the building specifications, less such amount as the court shall determine is the cost for such work, and less the amounts as shall be adjudged to plaintiff as costs and disbursements as directed by Clause 5 as above amended. The balance of said $1,000 then remaining shall be paid by the clerk to the defendant Gable Park, Inc., when the defendants named in Clause 1 have fully complied with the provisions thereof and, in addition thereto, have delivered to the clerk a properly recorded satisfaction of the mortgage lien of The Travelers Insurance Company; provided, however, if said mortgage has not been paid in full prior to the entry of a judgment against the defendants as hereinafter provided by Clause 4 as amended, then said funds shall be retained by the clerk and applied in the manner hereinafter directed.
3. After taking further evidence to determine the amount necessary to satisfy the lien, a new Clause 4 shall be substituted providing as follows: as an alternative measure of relief, if the defendants named in Clause 1 of the decree neglect or are unable to obtain a release of the insurance company's mortgage, the *231 plaintiff may at any time move for and, in the exercise of the court's discretion, secure a judgment against the defendants named in Clause 1 for compensation in lieu of the decree of specific performance insofar as it directs them to secure a release of the mortgage lien, said judgment to be in an amount equal to the aggregate of all payments, if any, theretofore made by plaintiff upon the debt secured by the mortgage, including interest from the date of each payment made by her, plus such amount as may then be owing upon said mortgage, principal and interest, plus the cost of recording the release and a title insurance policy; provided further that any money received by reason of any execution issued on said judgment shall be paid directly to the clerk of the circuit court of Washington county and shall be by the clerk, together with all monies paid into court pursuant to Clause 2 as amended, promptly disbursed as follows:
All amounts received by the clerk of the court under the decree and disbursed by him directly to the mortgagee and all amounts paid by defendants directly to the mortgagee shall be by the clerk credited *232 upon the judgment given under Clause 4 as amended against the defendants and in favor of the plaintiff.
Such a judgment for compensation may be entered by the court at any time on its own motion. It is further provided that any such judgment, whether entered on the motion of the plaintiff or by the court, shall reserve to the defendants the right to perform specifically by securing a release of the lien of the insurance company's mortgage; but such alternative privilege in the defendants shall be without prejudice to plaintiff's right to have an execution issue on such judgment as long as said mortgage is a lien upon plaintiff's property.
The suit is remanded for action necessary in conformance with this opinion. Costs in this court will be awarded to neither party.
LATOURETTE, C.J. (dissenting in part).
I agree with the opinion of the court in all respects save the modification of the decree below by providing for the entry by the Circuit Court of "an award of equitable compensation against the defendants upon application of the plaintiff" or upon the court's own motion. The plaintiff has not appealed. It is a firmly established rule in this state that the party who has not appealed cannot obtain here a modification favorable to himself of the decree from which the other litigant has appealed. See Crumbley v. Crumbley, 94 Or 617, 186 P 423, and cases cited. This is so whether the case be at law or in equity. McCoy v. Crossfield, 54 Or 591, 592, 104 P 423. That the court's decision grants a measure of relief to the plaintiff which she did not receive in the court below seems to me to be plain. I think, therefore, that the modification of the decree violates the rule and goes beyond the power of this court.
I am authorized to say that Mr. Justice LUSK concurs in this opinion. | 554a4e25251556c308be537492a5313118aa0bd134bdd66cc26c7eb673f06bac | 1954-09-22T00:00:00Z |
c716a15d-c1ce-4443-a351-3a717ebc973f | Hansen v. COHEN | 203 Or. 157, 278 P.2d 898 | null | oregon | Oregon Supreme Court | Affirmed November 10, 1954.
Petition for rehearing denied January 19, 1955.
*159 Carlton R. Reiter, Portland, argued the cause for appellant. On the brief were Stern, Reiter & Day, Portland.
William F. Bernard, Portland, argued the cause for respondents. On the brief were Collier, Bernard, Bernard & Edwards and Merwin Rankin, Portland.
Before LATOURETTE, Chief Justice, WARNER, BRAND and PERRY, Justices.
AFFIRMED.
LATOURETTE, C.J.
Action by Clarence Hansen against Cohen and Kesselman, co-partners, to recover damages resulting from an assault and battery by an employee of defendants who operated what is known as the Civic Parking Lot in Portland. From a judgment of nonsuit plaintiff appeals.
On the evening of April 19, 1952, plaintiff went to the lot to get his car which he had left there earlier in the day. He entered the office building on the premises and paid Millard Waters, defendants' employee in charge, his parking fee. The undisputed facts are that upon the payment of the fee plaintiff invited Waters *160 to throw dice with him for a wager of his fifty cents change. The invitation was accepted by Waters. At the conclusion of the dice rolling a dispute arose between them concerning the division of the winnings. Heated words ensued, whereupon the assault by Waters occurred.
The evidence discloses that Millard Waters, who had been in the employ of defendants since 1946, was a person of vicious propensities and was prone to the use of physical force and violence, all within the knowledge of defendants.
Plaintiff advances the legal proposition that at the time of the assault he was an invitee on the premises and because thereof defendants are liable for the assault on the legal ground that they were negligent in retaining Waters as their employee after they knew of his vicious propensities. It is conceded that the doctrine of respondeat superior is not involved because at the time of the melee the employee was not acting within the scope of his authority.
1. It is well settled that an employer may be liable to an invitee for an assault perpetrated by an employee of vicious propensities under certain circumstances, the rule being well stated in 35 Am Jur 1007, Master and Servant, § 574, as follows:
The same legal principle was recognized in Peck v. Gerber, 154 Or 126, 59 P2d 675, and Kelley v. Oregon Shipbuilding Corp., 183 Or 1, 189 P2d 105.
2, 3. It is equally well settled that the owner of premises owes no duty to a bare licensee or a trespasser other than to avoid injuring him wilfully or wantonly. In Lange v. St. Johns Lumber Co., 115 Or 337, 343, 237 P 696, we read:
See Kesterson v. California-Oregon Power Co., 114 Or 22, 228 P 1092; Akerson v. D.C. Bates & Sons, Inc., 180 Or 224, 174 P2d 953; 65 CJS 438, Negligence, § 24; 38 Am Jur 771, Negligence, § 109.
4. It therefore becomes necessary, in order to arrive at a proper disposition of this case, to determine the status of plaintiff at the time of the assault. Although one's status may originally be that of invitee the same may be lost under certain circumstances. This rule was stated in Napier v. First Congregational Church, 157 Or 110, 113, 70 P2d 43. In that case plaintiff called on the minister pursuant to invitation and while awaiting an interview with him he had occasion to go to the *162 lavatory whereupon he opened a door and stepping forward fell down a stairway. We there said:
We read in 38 Am Jur 762, Negligence, § 101:
In the following cases where the party claiming damages used the premises for purposes other than those for which they were intended or to which the invitation extended, he was termed a trespasser by the court: Ryan v. O'Hara, 241 Wis 389, 6 NW2d 209; Commonwealth v. Henderson's Guardian, 245 Ky 328, 53 SW2d 694; Amblo's Adm'x v. Vermont Associated *163 Petroleum Corp., 101 Vt 448, 144 A 460. See 42A Words and Phrases, "Trespasser."
5. The gravamen of the charge in the complaint is the negligence of defendants in retaining Waters, well knowing of his vicious propensities. There can be no negligence if there is no duty or obligation due from one person to another. This rule is well stated in Haynes v. Ore.-Wash. R. & N. Co., 77 Or 236, 244, 150 P 286, as follows:
6. We conclude as a matter of law that plaintiff was unlawfully using the defendants' premises for purposes or in ways other than those for which they were intended or to which his invitation extended. He was in no better position than had he come in directly from the street to gamble. By no stretch of the imagination could it be assumed that the defendants intended to permit the premises to be used for gambling purposes. They were engaged in the business of operating a parking lot and not that of gambling. Being on an unlawful quest of his own at the time of the fracas, defendants owed him no duty other than to avoid injuring him willfully or wantonly. There is no contention that they so acted.
Stern, Reiter & Day and Jerome B. Shank, of Portland, for the petition.
*164 Collier, Bernard, Bernard & Edwards and Merwin Rankin, of Portland, contra.
DENIED.
PER CURIAM.
Plaintiff's first proposition in his petition for rehearing is that we erred in holding that at the time of the alleged injury plaintiff was not a business invitee. It is asserted that the transition from the status of invitee to licensee or trespasser can only take place when an injured party removes himself from the physical area to which he was invited and that the cases supporting the text of Corpus Juris Secundum and American Jurisprudence and the cases we cited are all confined to the so-called area theory and that since plaintiff remained in the same area of the parking lot where he was invited to park his automobile, he remained an invitee at all times.
7. There is a wealth of authority that a person may change his status even though he remains in the same area to which he was invited. The following cases instruct us that a person's status may shift to that of a trespasser although he remains in the same area where he was invited to go. Polston v. S.S. Kresge, 324 Mich 575, 37 NW2d 638; Barry v. Southern Pac. Co., 64 Ariz 116, 166 P2d 825, 828; Connelly v. Virginian Ry. Co., 124 W Va 254, 20 SE2d 885; Slaughter v. State, 64 Ga App 423, 13 SE2d 391; Humphrey Co. v. Cohen, 16 Ohio Cir Ct Rep 284, 286; Page v. Town of Newbury, 113 Vt 336, 34 A2d 218; Hurwith v. Shapiro, 334 Ill App 619, 79 NE2d 528.
Plaintiff argues that the defendant would be liable to plaintiff even though he were a licensee and even though the assault was not willful or wanton on the part of defendants if they were guilty of active negligence, *165 citing Napier v. First Congregational Church of Portland, 157 Or 110, 70 P2d 43 and McHenry v. Howells, 201 Or 697, 272 P2d 210.
8. The fallacy of the above is that this action is predicated upon the retention by defendants of Waters in their employ after they knew of his vicious propensities. At the most, failure to discharge would be passive negligence.
9. We recognize that the words "licensee" and "trespasser" have in many cases, both in this and other jurisdictions, been employed in cases of this type as being synonymous. Much loose judicial expression has been employed in dealing with the subject. However, there is a very marked distinction between them. A licensee is one who goes onto land of another with an express or implied invitation for his own pleasure and purposes, while a trespasser is one who enters or remains upon lands in the possession of another unlawfully and without the consent or acquiescence of the owner. See 2 Restatement of the Law, Torts, § 329, et seq. Some courts permit recovery by a licensee or trespasser for active negligence while others do not permit a trespasser to recover for such negligence. Annotations, 49 ALR 778 and 156 ALR 1221.
10. In this state we have consistenly held that as to a trespasser, such as we have in the instant case, there can be no liability against the owner of the premises unless the injury was brought about by wanton or willful negligence on his part.
In the early case of Rathbone v. Oregon Ry. Co., 40 Or 225, 66 P 909, where Rathbone and his wife, at the invitation of one of defendant's section foremen, went with him on a Sunday on a handcar from Rooster Rock to Corbett, a distance of about one and one-half *166 miles, to get some cherries. While returning from their jaunt and while passing around a curve in the railroad a collision occurred between the handcar and one of defendant's trains, whereupon Rathbone was killed. We held that Rathbone was a mere trespasser, and said:
See Haynes v. Oregon-Washington, etc. Co., 77 Or 236, 244, 150 P 286; Kesterson v. California-Oregon Power Co., 114 Or 22, 31, 228 P 1092; Carr v. Oregon-Washington R.R. & Nav. Co., 123 Or 259, 261 P 899.
11. Plaintiff relies on Holcomb v. Meeds, 173 Kans 321, 246 P2d 239, wherein plaintiff's decedent, together with his paramour, rented one of defendant's cabins for a concededly immoral purpose. They met their death as the result of a defectively connected gas heater. The court held that their illegal sortie did not constitute a defense for the wrongful death since their actions had no causal connection with their death. That case and ours do not parallel each other. One cannot equate the actions of an employee, acting without the scope or course of his employment, to that *167 of a piece of machinery or equipment. In the Kansas case the defendant at all times had the control of the defective instrumentality while in the case sub judice when defendants' employee engaged in conduct clearly outside the scope or course of his employment and not within the contemplation of the employer, control and responsibility for his act to the trespasser ceased.
We find no merit in the other points raised.
Petition denied.
BRAND, J., for rehearing. | 62cdaf1591dff1a7fbf980be68a02120044d2ee3b3e00f97e07d8e3b73b5f740 | 1954-11-10T00:00:00Z |
f887fb99-c26c-4785-817d-59fc69ad90b5 | United States v. Cohn | 201 Or. 680, 272 P.2d 982 | null | oregon | Oregon Supreme Court | Affirmed June 30, 1954.
*681 Hubert H. Margolies, of Washington, D.C., argued the cause for appellant. With him on the brief were Holmes Baldridge, Henry L. Hess, United States Attorney *682 of Portland, and Paul A. Sweeney and Robert Mandel, Attorneys for the Department of Justice.
Dan M. Dibble, Deputy District Attorney for Multnomah County, argued the cause for respondent. With him on the brief was John B. McCourt, District Attorney for Multnomah County.
Before WARNER, Acting Chief Justice, and LUSK, BRAND, and PERRY, Justices.
AFFIRMED.
BRAND, J.
The United States of America as plaintiff filed in the circuit court of Multnomah County, Oregon, a petition for a writ of mandamus to compel the county clerk of that county to issue a writ of attachment in the case of The United States of America v. Griffith Annesley and Elizabeth Annesley, husband and wife, which had been previously filed in the circuit court of Multnomah County. An alternative writ of mandamus was issued directing the clerk to issue the writ of attachment or show good cause for his failure so to do. The defendant filed a demurrer to the alternative writ contending that he was without power or authority to issue a writ of attachment unless an undertaking was first filed as required by Oregon law. The position of the United States was that it was not subject to that law. The circuit court sustained the demurrer and "denied" the writ of mandamus. The United States appeals.
Plaintiff has set forth in its abstract of record the petition for a writ of mandamus together with the exhibits which were attached thereto and incorporated therein and which were as follows: Exhibit A, the complaint in the action at law wherein the United *683 States was plaintiff and Griffith Annesley and Elizabeth Annesley were defendants; Exhibit B, the affidavit for attachment filed in that case; and Exhibit C, the form of a writ of attachment which was tendered to the county clerk for execution but not executed. The writ of mandamus, however, contains no copy of any of said exhibits nor does it set forth the allegations contained in them. The alternative writ of mandamus is addressed to the defendant Si Cohn, county clerk. It recites that "it manifestly appears to the above-entitled Court by the verified petition of plaintiff * * *". Then follows an enumeration of the matters which manifestly appear from the petition as follows: (1) The official capacity of the defendant; (2) the capacity of the plaintiff; (3) that the United States was plaintiff in an action filed in the circuit court against the defendants Annesley; (4) that with the filing of the complaint plaintiff filed its affidavit of attachment and requested and demanded that the defendant issue a tendered writ of attachment; (5) that the defendant refused to issue the writ upon the ground that as a condition precedent to its issuance it was necessary for the plaintiff to file a good and sufficient undertaking as provided in section 7-203 OCLA. The writ continues that it was then and there the defendant's duty to issue the writ upon such demand but that the defendant violated his duty and refused to issue the writ. The alternative writ further recites that the issuance of the writ is indispensable to the enforcement of the petitioner's rights and that there is no plain, speedy or adequate remedy at law, and it then commands the defendant to issue the writ or show cause why he has not done so. The remaining portion of the writ is immaterial to our consideration of this question.
*684 1-3. In the very recent case of State ex rel. Bethke v. Bain, 193 Or 688, 694, 240 P2d 958, this court said:
We cannot deviate from a rule of pleading which was announced as early as 1891 (see McLeod v. Scott, 21 Or 94) which has been repeatedly stated in later decisions and expressly defined and applied in the case of State ex rel. Bethke v. Bain, supra. Irrespective of the rule of pleading which limits us to a consideration of the allegations contained in the alternative writ, it is firmly established in this state that no petitioner is entitled to the remedy of mandamus unless he has a clear legal right to the performance of the particular duty sought to be enforced and unless there is a plain legal duty on the part of the defendant to perform the act. State ex rel. v. Dobson, 171 Or 492, 135 P2d 794, 137 P2d 825; Ross v. County Court of Marion, 147 Or 695, 35 P2d 484; Morris Co. v. Port of Astoria, 141 Or 251, 15 P2d 385; State v. Ringold, 102 Or 401, 202 P 734; State v. Multnomah County, 82 Or 428, 161 P 959; State ex rel. v. Malheur County Court, 46 Or 519, 81 P 368.
*685 In State ex rel. v. Olson, 175 Or 98, 151 P2d 723, an original proceeding in mandamus was brought by the state upon the relation of Chester Bowles to compel the respondent district judge to take jurisdiction of an action for triple damages under the Emergency Price Control Act. As in the case at bar there was a demurrer to the alternative writ. In that case we said:
We have adequately summarized the allegations of the alternative writ. We will now enumerate certain matters that are not set forth therein, bearing in mind the authorities cited supra. There is no authority to issue an attachment in an action at law except in actions upon contract express or implied, actions against a nonresident of the state to recover money as damages for breach of any contract express or implied, or actions against a nonresident of the state for money damages for injury to property in the state. ORS 29.110.
The writ does not allege any contract between the plaintiff and the defendants Annesley or either of them. It does not allege that either of said defendants *686 was indebted to the plaintiff in the action which was brought against them. It does not allege that either of said defendants has personal property in Oregon. It does not allege that the defendants or either of them are nonresidents. From the brief of the United States we gather that the defendant Griffith Annesley owed money to the government as a result of advances made to him in connection with the performance of two government contracts which were canceled by the government and that Griffith Annesley was a nonresident of the United States who had moved to Vancouver, B.C. It is also intimated in the brief that the purpose of the United States was to attach assets allegedly belonging to Griffith Annesley, either possessed by or standing in the name of his wife and located in the state of Oregon, and then to proceed, after substituted service, to secure the application of said Oregon assets to the payment of its claim. But we are now concerned only with the showing necessary to authorize issuance of a writ of attachment.
While we are not at liberty to examine the original petition for mandamus, together with its exhibits, for the purpose of supporting the right of the plaintiff to the issuance of the writ, nevertheless, in order to show that our decision is not based exclusively upon a technical rule of pleading, we will mention the fact that neither the original petition nor the exhibits attached thereto set forth any cause of action against Elizabeth Annesley for approximately $71,000, as demanded in the complaint (Exhibit A). The original petition and exhibits show that the defendant Griffith Annesley had transferred personal property in Oregon to his wife, but it does not show that such transfer was in fraud of creditors. Neither the original petition *687 with its exhibits, nor the alternative writ of mandamus contains any allegation that any summons was issued or delivered to the sheriff for service at or prior to the filing of the affidavit for attachment, the tendering of the proposed writ of attachment, or the refusal of the clerk to issue the proposed writ.
4. The following cases hold that a writ of attachment issued before the summons is issued is void: Willamette Collection & Credit Service v. Henry, 138 Or 460, 7 P2d 261; McMaster v. Ruby, 80 Or 476, 157 P 782; White v. Johnson, 27 Or 282, 40 P 511. The issuance of summons and delivery to the sheriff is a prerequisite to the issuance of a writ of attachment. Macleay Estate Co. v. Churchill, 132 Or 63, 284 P 286.
5, 6. Under our statute and decisions it is mandatory that a summons be issued and placed in the hands of the sheriff for service at or prior to the issuance of an attachment, and this is true whether the attachment be ancillary to a proceeding in personam with personal service within the state or is to form the basis for proceedings in rem with publication of summons and a showing of due diligence in ascertaining that the defendants could not be found in Oregon. ORS 15.120. Whether or not the United States is exempt from the statutory requirement of an undertaking on attachment it will certainly not be argued that it is exempt from the requirements of ORS 29.110, supra.
7, 8. Since the petition for the writ of mandamus became functus officio upon the issuance of the alternative *688 writ and since that writ fails to set forth every fact necessary to entitle the relator to the relief demanded, it follows that the plaintiff is not entitled to an order directing the defendant to issue a writ of attachment. This is not a case such as Bank of Colfax v. Richardson, 34 Or 518, 54 P 359. In that case there was a collateral attack on a judgment in rem and it was held that the judgment was valid notwithstanding the failure of the record to show affirmatively that a summons had been issued before the issuance of the writ of attachment. In the pending case the situation is analogous to that in Metropolitan Investment & Improvement Co. v. Schouweiler, 83 Or 695, 163 P 599, 164 P 370. In that case the plaintiff sued to enjoin the sale of real property which had been attached, claiming that the attachment was void. It was held that the defendant had the burden of proving that his attachment was duly levied and that all of the statutory requirements appertaining thereto were complied with. Upon rehearing the court said:
9. The petition of the United States rests upon the contention that ORS 29.130 which requires the filing of an undertaking for attachment is unconstitutional as applied to it. We have repeatedly held that constitutional questions will not be determined unless *689 their decision is essential to the disposition of the cause. Oregon Creamery Manufacturers Association et al. v. White, 159 Or 99, 78 P2d 572; Winslow v. Fleischner et al., 112 Or 23, 228 P 101; McKinney v. Watson, 74 Or 220, 145 P 266; State ex rel. v. Malheur County Court, supra.
Upon the record presented in the case at bar it is not only unnecessary, but it would also be improper for us to pass upon the constitutional question presented. If, as we assume, the United States desires to bring up a test case from the courts of this state, it must at least comply with such procedural requirements of our statutes as are clearly valid and applicable to it.
The judgment of the circuit court is affirmed. | 763d54c1cbe9f93bf47299d47d881dbb59062971cd6e176fde43b110b941d3a1 | 1954-06-30T00:00:00Z |
9bdd5719-5a70-416c-9b7a-686fa6403f87 | GE Supply Corp. v. Republic Cons. Corp. | 201 Or. 690, 272 P.2d 201 | null | oregon | Oregon Supreme Court | Reversed June 30, 1954.
Arno H. Denecke, Portland, argued the cause for appellant. With him on the brief were Wilbur, Mautz, Souther & Spaulding, Portland.
Edward A. Boyrie, Portland, argued the cause for respondent. With him on the brief was F. Brock Miller, Portland.
*691 Before LATOURETTE, Chief Justice, and WARNER, LUSK, BRAND and PERRY, Justices.
REVERSED.
LATOURETTE, C.J.
Appeal by Republic Construction Corporation, defendant, from a decree rescinding a written contract entered into between plaintiff General Electric Supply Corporation and defendant, wherein plaintiff agreed to sell to defendant certain apartment house kitchen equipment for the sum of $93,503.27, and from a judgment against the defendant in the sum of $30,150.
The amended complaint is predicated on two causes of suit, the first being that plaintiff made a unilateral mistake in submitting its bid to defendant with actual or constructive knowledge on the part of defendant for which rescission is prayed, and, secondly, that there was a mutual mistake in the execution of the contract between the parties for which reformation is asked.
The facts are that defendant had a contract to build the Ione Plaza apartment house in Portland for the sum of two and one-half million dollars. Prior to the awarding of such contract, and on December 7, 1949, defendant procured from plaintiff a written statement offering to furnish the equipment in question for the sum of $126,531.90. Later on, negotiations were had between plaintiff and defendant, defendant urging plaintiff to bring its bid down because its competitors were "away lower", when finally on or shortly after July 7, 1950, after certain changes were made in the plans and specifications concerning such equipment, plaintiff verbally offered to sell to defendant such equipment for the sum of $93,503.27. Thereupon, *692 on July 11, 1950, in conformity with the verbal understanding, plaintiff prepared a written contract itemizing the various units involved and submitted it to the defendant. The contract was then formally entered into between the parties, plaintiff agreeing to sell to defendant the units in question for the sum of $93,503.27. Deliveries of the kitchen equipment thereupon ensued, following which the defendant issued bills of sale to the Commerce Mortgage Company, the party that was putting up the money on the contract.
On May 3, 1951, plaintiff notified defendant in writing that it had made an error and mistake in submitting the bid of $93,503.27 and that on account thereof elected to and did rescind the contract entered into between them and tendered back to the defendant $83,664.14 theretofore paid to plaintiff by defendant and demanded a return of the equipment in question, which demand was refused by defendant.
Since the equipment went into the building, which placed it beyond the power of defendant to return, the court, in addition to rescinding the contract, entered judgment against defendant for the amount of the discrepancy.
1. There is no evidence in this case of mutual mistake between the parties warranting reformation, that being the basis of plaintiff's second cause of suit. The written contract between the parties truly reflected their oral agreement, and, in such circumstance, there can be no mutual mistake that would justify reformation. Manning Lumber Co. v. Voget, 188 Or 486, 216 P2d 674; Spexarth v. Rhode Island Insurance Co., 118 Or 22, 245 P2d 515. The trial court evidently took this view of the matter since the decree ordered rescission rather than reformation.
*693 Plaintiff's first cause of suit is predicated on a unilateral mistake for which it asks rescission of the contract. The basis for such mistake is that in preparing the kitchen equipment work sheet on July 7, 1950, a mistake was made in figuring a subtotal. This work sheet consisted of 26 units, unit prices, subtotals and a grand total. One of the units consisted of 100 Pullman kitchens listed at $335 per kitchen. The subtotal carried forward was $3,350 instead of $33,500.
2. To grant a complainant rescission on account of a unilateral mistake it is necessary that the mistake be basic and known to the other party, or that circumstances are such that the other party, as a reasonable person, should have known of the same. Rushlight Co. v. City of Portland, 189 Or 194, 244, 219 P2d 732.
3. There is no evidence of actual knowledge of the alleged mistake on the part of defendant. The question posed, then, is whether or not defendant, as a reasonable person, under the circumstances, should have known of the same.
It is first contended by plaintiff that the disparity between its preliminary bid of December 7, 1949, of $126,531.90 and the final bid of July 7, 1950, of $93,503.27 was so great as to put defendant on notice of plaintiff's mistake.
The evidence discloses that on a number of occasions defendant told plaintiff to get its bid down to meet competition and plaintiff suggested that if certain changes were made in the plans and specifications such end might be attained. These changes were effectuated, and Mr. David D. Seeley, the employee handling builder and apartment sales projects and *694 builder activities, who negotiated the deal, and Mrs. Marion Hughes, who did the kitchen planning, checked dealers, made up and helped to price the equipment list, and Mr. Paget, general sales manager, all of whom were plaintiff's employees, thought that such changes were accountable for the disparity in price. Mr. Seeley testified:
The following is the testimony of Mrs. Hughes:
Since plaintiff thought that the changes were responsible for the reduced price, defendant could reasonably indulge in the same belief.
It is claimed that Mr. Leveck, vice president of defendant corporation, urged an immediate signing of the contract after he saw the work sheet in question and by thus snapping up the bargain an inference should be drawn that Mr. Leveck was cognizant of the mistake. We do not believe that such an inference is warranted. Mr. Seeley's testimony discloses that the $93,000 bid was submitted to Mr. Leveck between July 7 and July 11, the contract being signed on the latter date; that Mr. Leveck at that time requested Mr. Seeley to reduce the bid further; and that thereupon *695 Mr. Seeley returned to his office and rechecked the figures with the assistance of his comptometer employees and returned the next morning to Mr. Leveck's office, the day before the contract was signed. Thereupon the bid was accepted and Mr. Seeley returned to his office and prepared the contract that was executed on the General Electric Company form. The record shows that at the request of Mr. Leveck a contract, dated July 12, on defendant's form, was signed by the parties. It is practically identical to the General Electric contract of July 11.
The claim is made that on the occasion of the last meeting Mr. Seeley went over the figures and prices with Mr. Leveck and Mr. Seeley handed Mr. Leveck the work sheet in question; that thereupon he absented himself to his inner office for a period of ten or twelve minutes and upon returning announced that he would accept the bid. There is no evidence as to what occurred in the private office excepting the testimony of Mr. Leveck and Mr. Bellerby, his assistant, that the only matters discussed were the number of units and the lump sum bid. It will be noted that Mr. Seeley fixed the date of this meeting as the day before the contract was signed, and, further, that Mr. Seeley prepared the July 11 contract on the General Electric Company's form. We do not believe that this evidences a snapping up of the bargain.
How the plaintiff could charge defendant with notice of the mistake from such circumstances, when it claims it did not know of the same, is beyond comprehension. It will be remembered that such work sheet was dated July 7, 1950, some four days before the execution of the contract. It was in the possession of the plaintiff during this period of time. The evidence *696 discloses that not only did Mr. Seeley and Mrs. Hughes check and recheck the same but that Mr. Paget and plaintiff's comptometer operators also went over the figures. It occurs to us that with so many fingers in the pie someone should have plucked out the plum. Therefore, if defendant should have had knowledge of the mistake a fortiori plaintiff should have had knowledge.
The view we have taken of this case makes it unnecessary for us to go into the matter of the alleged negligence on the part of plaintiff, its inability to place defendant in statu quo, or the affirmance of the contract by plaintiff after the discovery of the mistake by cashing the check of defendant and delivering materials to the job.
Reversed. | ea57d807632e60f105a313707458c5c46bb1ce2f4f0bd9cbbc16fa6b446be053 | 1954-06-30T00:00:00Z |
7d6d4cea-269e-4410-8820-0160f1377934 | Milwaukee Mechanics Ins. Co. v. Childs | 201 Or. 347, 270 P.2d 139 | null | oregon | Oregon Supreme Court | Reversed with directions May 12, 1954.
*348 W.E. Cameron, of Portland, argued the cause and filed a brief for appellant.
Harry A. English, of Bend, argued the cause and filed a brief for respondent.
Before LATOURETTE, Chief Justice, and WARNER, ROSSMAN, TOOZE and PERRY, Justices.
REVERSED WITH DIRECTIONS.
TOOZE, J.
This is an action brought by plaintiff Milwaukee Mechanics Insurance Company against defendant Raoul C. Childs, to recover money paid by plaintiff for damages to the automobile of its insured, one Spencer N. Greatwood, resultant from a collision between the Greatwood car and one owned and operated by defendant. The case was tried to the court. Judgment was entered in favor of defendant, from which plaintiff appeals.
Spencer N. Greatwood was the owner of a 1951 Dodge automobile. He had a policy of insurance with the plaintiff corporation, which was in full force and effect at the time of the accident hereinafter described. By reason of said policy of insurance, and pursuant to the terms thereof, plaintiff paid the sum of $680.96 for repair of its insured's car, and the insured paid the further sum of $100 for such repairs. The repairs were *349 necessitated by a collision between the said Dodge automobile and a 1937 Pontiac automobile owned and operated by defendant. Before the commencement of the action, Greatwood assigned his claim for $100 to plaintiff, and plaintiff instituted this action in its own name under the doctrine of subrogation.
On May 3, 1952, Greatwood's automobile was being driven by one Kenneth R. Bunn on the River Loop road, about three miles north of Camp Sherman, Oregon. A collision occurred between the Greatwood car and the car owned and then being operated by defendant. The evidence established, and the trial court specifically found, that the drivers of both cars were guilty of negligence proximately causing the accident.
The sole question for decision is whether the negligence of the driver of the Greatwood automobile can be imputed to Greatwood, and thereby bar recovery from defendant for the damages sustained.
The finding of fact made by the trial court that is material to a solution of the problem now before us is the following:
The only basis for imputing Bunn's negligence to Greatwood would be that at the time of the accident Bunn was Greatwood's agent. If Bunn was Greatwood's agent in the operation of the automobile, then, of course, Bunn's negligence would be imputed to Greatwood as concerns third parties, thus barring a *350 recovery against defendant for damages to the Greatwood car, although it would not bar a recovery against Bunn. If Bunn was not Greatwood's agent, then Greatwood would have a good cause of action against both Bunn and defendant, or either of them.
1, 2. Defendant directs our attention to the holdings of this court to the effect that proof of ownership of an automobile is sufficient to establish a prima facie case of agency. From proof of ownership, an inference of agency arises, but that is a mere inference and may be overcome by proof to the contrary. If, in fact, the evidence discloses that the owner of the automobile gratuitously loaned or rented his car to another for the sole use and purpose of such other, then there is established between the owner and the other party the relationship of bailor and bailee, rather than that of principal and agent, and in such circumstances the negligence of the bailee cannot be imputed to the owner. White v. Keller et ux., 188 Or 378, 215 P2d 986; Summerville v. Gillespie, 181 Or 144, 179 P2d 719; Kantola v. Lovell Auto Co., 157 Or 534, 72 P2d 61; Judson v. Bee Hive Auto Service Co., 136 Or 1, 294 P 588, 297 P 1050, 74 ALR 944.
3. The above finding of fact made by the trial court conclusively establishes that at the time of the accident in question Bunn was operating Greatwood's automobile for his own purposes in making a fishing trip: that this was the sole purpose for the car's operation. The court also found that the automobile had been loaned to Bunn for that exclusive purpose. Greatwood was not in the car at the time and had no control or direction whatever over its operation; nor was it being driven for any purpose or upon any business of his.
Under the trial court's finding, it is evident that the relationship existing between Greatwood and Bunn was *351 one of bailor and bailee, and not that of principal and agent. It was a bailment for the exclusive benefit of the bailee.
4. Defendant argues that the trial court did not make a specific finding that Bunn was not the agent of Greatwood, and, therefore, the inference of agency arising from proof of ownership was not found by the trial court as having been overcome. It was unnecessary for the trial court to make an express finding that Bunn was not the agent of Greatwood. That would simply have been a conclusion. The trial court did find the facts as they existed, and from the facts as so found, the true relationship existing between the parties is shown.
In Kantola v. Lovell Automobile Co., supra, at page 540, we said:
After finding the facts as above set forth, the trial court found and entered as a part of its conclusions of law, the following:
The trial court erred in this conclusion of law.
The trial court also found that the Greatwood car was damaged in the sum of $780.96, and "that said damages were a reasonable value for the depreciation of said Spencer N. Greatwood car caused directly by the accident of May 3, 1952, between the Spencer N. Greatwood automobile and defendant's car."
The judgment is reversed and this cause remanded with directions to enter judgment in favor of plaintiff and against the defendant in the sum of $780.96, together with plaintiff's costs and disbursements in the trial court. | 841bc5555a18e6dd46ed65722f96740c49322901016baedc350cdbb29f1ca073 | 1954-05-12T00:00:00Z |
2652560d-f99d-4441-9530-87492b73b4a6 | In Re Creamer | 201 Or. 343, 270 P.2d 159 | null | oregon | Oregon Supreme Court | 201 Or. 343 (1954)
270 P.2d 159
IN RE: COMPLAINT AS TO THE CONDUCT OF ROBERT J. CREAMER
Supreme Court of Oregon.
Submitted April 13, 1954.
Defendant suspended May 12, 1954.
PER CURIAM.
The defendant Robert J. Creamer, an attorney duly licensed to practice in the courts of the state of Oregon, was found to be guilty of professional misconduct by a trial committee of the Oregon State Bar. In our opinion *344 the record justifies fully the judgment of the trial committee.
It appears from the record that the defendant during the time that he committed the acts of misconduct charged and proven against him was suffering from a mental disorder, and the Board of Governors of the Oregon State Bar has recommended that "Robert J. Creamer be suspended from the practice of law in the courts of this state for a period of two years and for such time thereafter until he shall have demonstrated by competent evidence that he has sufficiently rehabilitated himself physically, mentally and morally to entitle him to reinstatement in the Oregon State Bar".
Our careful consideration of the record convinces us that the spirit of the recommendation of the Board of Governors should be adopted. Therefore, it is hereby ordered that the defendant Robert J. Creamer be suspended from the Oregon State Bar until such time as this court shall find that he has made a recovery that would justify his again accepting the obligations and faithfully performing the duties of an attorney in the State of Oregon. | f47e93c08e5e0e0c835c5303f87266ae3fb3b76b3aeebfdc5cde2a356592c4be | 1954-05-12T00:00:00Z |
106131d1-3177-4ffe-af3d-da03f2beb0bd | State of Oregon v. Brantley | 201 Or. 637, 271 P.2d 668 | null | oregon | Oregon Supreme Court | Affirmed June 17, 1954.
*638 Walter D. Nunley, District Attorney, Jackson County, of Medford, argued the cause for appellant. With him on the brief was J.V. McGoodwin, Deputy District Attorney, of Medford.
Edward C. Kelly, of Medford, argued the cause and filed a brief for respondent.
Before LATOURETTE, Chief Justice, and WARNER, ROSSMAN and PERRY, Justices.
AFFIRMED.
*639 PERRY, J.
The grand jury of Jackson county, Oregon, indicted the defendant Gene R. Brantley, the charging part of the indictment reading as follows:
The defendant challenged the indictment by demurrer on the following grounds:
The trial court sustained the demurrer of the defendant and the State has appealed.
The State earnestly contends that the facts set forth in the indictment do constitute the crime of uttering a forged instrument, the basis of their argument being that § 23-560, OCLA, which reads as follows:
includes within the definition of the words of the statute, "public record", a certificate of nomination for the candidacy of a person seeking public office as provided in § 81.1007, OCLA, as amended, now ORS 249.770, and, therefore, being an instrument subject to forgery, the offering of the certificate of nomination, purportedly signed by the individual electors, but being in fact not the signatures of the electors, constituted the uttering of a forged instrument within the terms of the statute.
Also, the State earnestly contends that the portion of the above statute relative to uttering a forged instrument which reads as follows: "Or shall, with *644 such intent, knowingly utter or publish as true or genuine any such false, altered, forged or counterfeited record, writing, instrument, or matter whatever, * * *", [italics ours] includes within the term "or matter whatever" any forged instrument, regardless of whether or not the instrument uttered is included in the specific matters or things subject to forgery in the body of the statute.
1, 2. We cannot adopt this latter contention of the State, however, for the reason that the words "matter whatever" standing alone and not in conjunction with the specific matters made subject to the crime of forgery in the statute are so indefinite in their scope that it would be impossible to determine what acts of false and fraudulent uttering were intended by the legislative body to be lawful and what were intended to be criminal, making this portion of the statute void for indefiniteness. "A valid criminal law must definitely show with reasonable certainty what acts or omissions the law-making body intended to prohibit and punish: 1 Cyclopedia of Criminal Law, Brill, § 62. But reasonable definiteness in view of the conditions is all that is required: State v. Lawrence, 9 Okl. Cr. 16 (130 Pac. 508); State v. Schaeffer, 96 Ohio St. 215 (117 N.E. 220, Ann. Cas. 1918E, 1137, L.R.A. 1918B, 945) * * *". State v. Bailey, 115 Or 428, 432, 236 P 1053.
3-6. While the rule of the common law, that penal statutes are to be strictly construed, has no application in this state, and all its provisions are to be construed according to the fair import of their terms with a view to effect its objects and to promote justice (§ 23-106, OCLA, now ORS 161.050), this statute does not permit an enlargement of a statute by construction, *645 Kirk v. Farmers' Grain Agency, 103 Or 43, 202 P 731; and the danger of enlarging a statute by judicial construction is pointed out forcibly by Mr. Chief Justice Marshall in the case of United States v. Wiltberger, 5 Wheat. 76, 96, 5 LE 37, where he said:
In this matter, therefore, to avoid invalidating and to give force to the words of this statute relative to the uttering and publishing of a false and fraudulent matter or thing, we are constrained to apply the rule of statutory construction ejusdem generis "where general words follow the enumeration of particular classes of persons or things, the general words will be construed as applicable only to persons or things of the same general nature or class as those enumerated. The rule is based on the obvious reason that if the legislature had intended the general words to be used in their unrestricted sense they would have made no mention of the particular classes. It has been held especially applicable to penal or criminal statutes, and statutes which partake of the nature of criminal process". 82 CJS 658, Statutes, § 332 b. In this connection it is to be noted that the legislature in adopting the revised statutes of this state in 1953 in setting forth *646 § 23-560, OCLA, set forth in ORS 165.105 the matters and things subject to forgery, and in ORS 165.115, relative to the crime of uttering forged instruments, provided that the false or forged instrument to be uttered was the "record, writing, instrument or other matter specified in ORS 165.105".
Since, as we have pointed out, the crime of uttering and publishing a false and fraudulent record, writing, instrument or other matter must be one that is made subject to forgery by the statute, we must now consider whether or not a certificate of nomination for the candidacy of a person seeking public office before the same has been filed with the county clerk is a public record within the meaning of the criminal statute.
7. "A `public record', strictly speaking, is one made by a public officer in pursuance of a duty, the immediate purpose of which is to disseminate information to the public, or to serve as a memorial of official transactions for public reference". State v. Grace, 43 Wyo 454, 5 P2d 301, 303; and to the same effect see also Robison v. Fishback, 175 Ind 132, 93 NE 666, People v. Purcell, 22 Cal App 2d 126, 70 P2d 706.
Black's Law Dictionary 3rd Edition, page 1506, defines "public record" as follows:
8. However, apart from general definitions of a "public record", ORS 249.820 definitely sets forth *647 when a certificate of nomination becomes a public record. This statute reads as follows:
The statute itself determines that until such time as the certificate of nomination has passed from the hands of the person in possession thereof to the county clerk, the public in general has no interest therein. Therefore, the forgery of a certificate of nomination must be the forgery of that document after it has become such a public record by being filed, and not before.
The indictment in this case as hereinbefore set out does not charge the uttering of a forged public record, but charges the uttering of a forged private record. Since the indictment fails to charge a crime, it is unnecessary for us to consider the other matters raised by the demurrer.
The decree of the circuit court sustaining the demurrer to the indictment is affirmed. | 25496cc6541fcd5b85fc51913ae70a1cd1e9e560fd72672a6fe174a066904e0e | 1954-06-17T00:00:00Z |
3a4182eb-4b93-4313-8cf7-436ab841f7a7 | PAC. WESTBOUND CONF. v. Leval & Co. | 201 Or. 390, 269 P.2d 541 | null | oregon | Oregon Supreme Court | April 21, 1954.
Albert E. Stephan, of Seattle, Washington, argued the cause for appellants. With him on the briefs was Allan Hart, of Portland.
James P. Cronan, Jr., of Portland, argued the cause for respondent and cross-appellant. With him on the briefs were Donald A. Schafer and Schafer, Holbrook & Cronan, of Portland.
Before LATOURETTE, Chief Justice, and WARNER, ROSSMAN, LUSK, BRAND and PERRY, Justices.
Petition for rehearing denied.
AFFIRMED.
*391 PERRY, J.
The plaintiffs are a voluntary association of numerous common carrier steamship companies duly organized under the authority of Title 46, USCA, cited as the "Shipping Act of 1916", and operating under the name of Pacific Westbound Conference. The members of the association operate ships in regular service, carrying cargo west-bound from ports on the Pacific coast of the United States and Canada to ports in the Far East.
The defendant, a corporation with its principal office in New York City, New York, maintaining a branch office in Portland, Oregon, is an extensive shipper of merchandise and other commodities by steamship.
In October, 1946, the plaintiffs entered into a contract with the defendant (the contract being designated as "Pacific Westbound Conference General Commodity Contract Rate Agreement") which provided that the defendant would consign all of its cargo shipments from Pacific coast ports via ships of carriers belonging to the Pacific Westbound Conference, and in consideration of the exclusive use of Conference ships, the defendant was to receive a lower tariff rate than that of a shipper who did not enter into such an exclusive contract of carriage. This exclusive contract of carriage, however, was not limited solely to the defendant, but was open to anyone who desired to enter into such an agreement.
The contract between the plaintiffs and the defendant also provided that should the defendant ship cargo with a carrier who was not a member of the Conference, then the shipper had breached the contract and would be liable in damages in a sum equal to the *392 contract tariff of the shipment, this amount being agreed to as liquidated damages in lieu of actual damages because of the impossibility or impracticability of determining the actual damage suffered by the plaintiffs.
The original contract as entered into was from time to time amended as to rates and terms by mutual agreement of the parties, the last revision and acceptance being on May 15, 1949.
In September, 1949, the defendant in violation of the contract agreement made a shipment from Astoria using a foreign flag vessel which was not a member of the Conference, and this action was brought by the plaintiffs for damages suffered by breach of the contract. The matter was tried to the circuit court without a jury, the trial court finding that there had been a breach of the contract, but denying the plaintiffs a recovery. Subsequent to a determination by the trial court that the plaintiffs could not recover liquidated damages as provided in the contract, the court permitted the cause to be reopened and the court determined the actual amount of damages, but still denied recovery. The plaintiffs have appealed from the adverse judgment of the court, and the defendant has cross-appealed, claiming that the trial court was in error in permitting the plaintiffs to reopen the case for the purpose of proving their actual damages.
The serious question that confronts this court is whether or not it is necessary that the conference agreement and its amendments as entered into between the steamship companies in order to give validity to the contract of carriage as sued upon must set forth the proposed dual contract rate program and be approved by the United States Maritime Commission prior to the execution of the General Commodity *393 Contract Rate Agreement, or, in lieu thereof, that the General Commodity Contract Rate Agreement between these parties be first formally approved by the United States Maritime Commission.
The answer to this question must be determined from the construction of Title 46, USCA, and particularly § 814 thereof, which reads as follows:
The memorandum of agreement which bound the various carriers together into the Pacific Westbound Conference was made and entered into on the 8th day of January, 1923, and duly approved by the Maritime Board (now existing as the United States Maritime Commission) on June 26, 1923. This agreement has from time to time been amended by the members of the Conference and the amendments duly approved by the United States Maritime Commission. The members of the Westbound Conference provide by their contract that their association together "is for the regulation of traffic and not of operation and only covers rates, tariffs, brokerage and matters directly relating thereto", and the parties to the Conference "agree and stipulate with each other that they will be bound by the agreement of two-thirds of their number * * * as to any tariff, freight rate, charge, brokerage, traffic regulation and/or, any other matter within the scope of this agreement with the same force and effect as if expressly made a part hereof." It is, therefore, readily seen that the action of two-thirds *395 of the members of the Conference in determining tariff rates and approving lower rates to exclusive users of Conference lines effects a change or modification in the agreement of the parties binding upon all members of the Conference.
Section 814 of Title 46, USCA, hereinbefore set out, provides that the term "agreement" as used in the act includes "understandings" and "other arrangements", and that all agreements, modifications or cancellations made subsequent to the organization of the Commission under the act shall be lawful only when approved by the Commission and that it shall be unlawful, directly or indirectly, to carry out any agreement or understanding or practice until approved.
Thus an agreement of dual rates as set forth in the contract sued upon is subject to the control of the United States Maritime Commission. The reason for this is readily understandable because the shipping act of 1916 permits the combining of a group of carriers and action by them that would be unlawful under §§ 1-11 and 15 of Title 15, UCLA, and the amendments and acts supplementary thereto, generally referred to as the Sherman Antitrust Act and the Clayton Act, and while, because of necessity in connection with the maintenance of adequate sea transportation for this country, Congress felt that the steamship companies could combine and operate to some extent in restraint of trade and carry on a monopolistic practice, for the protection of the public interest this was to be permitted only under due and proper supervision. The shipping act provides for prior approval.
We are impressed with the reasoning of the United States Court of Appeals for the District of Columbia Circuit in the case of Isbrandtsen Company, Inc. v. *396 United States of America and Federal Maritime Board, et al., (decided January 21, 1954), wherein it is stated:
The Conference agreement and its amendments and changes as approved by the Maritime Commission does not provide for a reduced rate to shippers exclusively using ships of the Pacific Westbound Conference, and it is admitted that the contract of the parties litigant although filed was never approved. We are of the opinion that there must first be formal approval of this practice as to this particular Conference by the United States Maritime Commission before such an agreement is enforceable between the Conference and a shipper.
The pleadings and the evidence failing to show the necessary approval by the United States Maritime Commission, the circuit court was correct in its result.
Since we view the contract as being "unlawful" and, therefore, unenforceable before approval by the United States Maritime Commission, it is unnecessary to consider the other issues of error claimed by the parties.
The judgment of the trial court is affirmed. | fb1ae221f0ca687982cd53519078ce0ed30576b9dc3c93da3ea4800969255410 | 1954-04-21T00:00:00Z |
eece75e4-3d14-4f5a-9bb0-f871b97f57e3 | SELLARDS ET UX. v. Malheur County | 202 Or. 188, 272 P.2d 975 | null | oregon | Oregon Supreme Court | Reversed with instructions June 30, 1954.
Objections to cost bill overruled September 22, 1954.
W.J. Sellards, In propria persona, of Ontario, argued the cause and filed briefs for the appellants.
*189 Lyle R. Wolff, of Baker, argued the cause and filed a brief for the respondents.
Before LATOURETTE, Chief Justice, and WARNER, ROSSMAN, TOOZE and PERRY, Justices.
REVERSED WITH INSTRUCTIONS.
PERRY, J.
This is a suit brought by the plaintiffs to quiet their title in and to real property described in the complaint as follows:
The complaint alleges that the defendants and each of them claim some interest in the above-described real property, and asks that they be required to set up their adverse claims, if any.
The defendants Malheur county and the Southeast Unit Drainage District did not appear and are in default.
The defendants C.A. Welty and Bertha Welty filed their answer, claiming an interest in and to the property described by the plaintiffs. These defendants prevailed, and from the decision of the trial court the plaintiffs appealed.
*190 Since the commencement of this suit Elizabeth Sellards has died, her interest vesting in the plaintiff W.J. Sellards, and the proceedings were continued for his benefit alone as plaintiff.
The admitted facts in the cause are as follows: In 1923 one James M. Coin was the owner of the following described lands, to-wit:
And in July, 1924, James M. Coin and wife conveyed by warranty deed to one Charles Denkey a portion of the above-described real property under the following description:
*191 In 1932 Malheur county foreclosed its tax liens upon the last above-described real property in the hands of Charles Denkey, describing it in the assessment rolls and in the foreclosure proceedings as follows:
Thereafter and on September 5, 1934, the Board of Commissioners of Malheur county directed the sale of the lands last above described, and on November 3, 1934, the plaintiffs purchased them and received a sheriff's deed conveying said lands to the plaintiffs. In October, 1934, the plaintiffs obtained a quitclaim deed from Charles Denkey, in which he (Denkey) conveyed the land to the plaintiffs under the same description as was contained in his deed from James M. Coin and wife, which is the description relied upon by the plaintiffs in this suit as the description of the lands they claim as owners in fee simple. In January, 1935, Malheur county foreclosed its tax liens upon the remainder of Coin's property that had not been conveyed to Charles Denkey, describing that remainder as follows:
On November 6, 1937, it entered into a written contract with the defendant Clarence Welty for the sale of this land, describing the land in the contract of sale and in the deed subsequently executed by the county to Welty as follows:
It is to be noted that the assessor in assessing the Charles Denkey land did not use the description of the land as used in the conveyance from James M. Coin and wife to Charles Denkey, but described the land in the "west half of the East half of the Southeast quarter of Section two, except 7 acres situated in the south end of and between the Malheur river and the County road" as the "West 17 acres lying between the County road and Malheur River in the E 1/2 W 1/2 SE 1/4 & W 1/2 E 1/2 SE 1/4, Sec. 2, Twp. 18 S., Rng. 46, E.W.M." We are unable from the record to determine why this latter description was used by the assessor for the purpose of assessing this land instead of the description as it appeared in the deed records of the county, and because no survey was made to determine the boundaries as expressed in the description set out in the conveyance from James M. Coin and wife to Charles Denkey, we are unable to determine whether the description used in assessing and foreclosing the tax liens upon the property is an identical description with that used in the conveyance from the Coins to Denkey.
1. We are very doubtful of the validity of either of the tax sales which resulted in conveyances by Malheur county to plaintiffs and the defendants. As we have noted before, the assessor of Malheur county did not describe the real property of Charles Denkey as it appeared in the deed records of that county, and there is no showing that the description which the assessor used describes the same property that Charles Denkey owned and that was being assessed to him for tax purposes. The same is true of the proposed assessment of Coin's remaining land. At the time of the *193 assessment the statute required "* * * the assessor shall set down in the assessment roll, in separate columns, and according to the best information he can obtain * * * a description of each tract or parcel of land to be taxed * * *." (Italics ours.) § 69-242, OCLA, § 110-336, OCLA, now 308.215 ORS. The information was there on the deed records and the best available to him. We do not think that any authority rests in an assessor to select a description of his own that does not substantially comply with the description in the deed record.
However, insofar as the plaintiffs are concerned in this matter, the record shows that they are the holders of a quitclaim deed of conveyance from Charles Denkey to whatever interest Denkey had, and it is apparent upon the face of the conveyance from the county to Clarence Welty that the description is wholly insufficient to convey title to him therefor.
2, 3. Whether the assessments and the foreclosures properly described the various tracts of property, and whether the sales held thereunder are valid, is immaterial to the decision of this case. To render a deed void for uncertainty of description, the ambiguity must be patent; that is, it must appear upon the very face of the instrument (Frizeen v. Swanton, 148 Or 250, 34 P2d 939); if the ambiguity is patent, parol evidence is not admissible, for the exact description of the grant is stated, and any application of extrinsic evidence would not be to identify or locate the property from a faulty description, but rather to add to or subtract from the words of the conveyance, thus varying the terms of an instrument by parol contrary to the statute of frauds. Hertel v. Woodard, 183 Or 99, 191 P2d 400; Bingham v. Honeyman, 32 Or 129, 51 P 735.
*194 4. The description in the deed of conveyance from Malheur county under which the defendants claim adversely to the contentions of plaintiffs is patently ambiguous; it reads as follows:
It must be readily seen that there is no ascertainable description of the real property whatsoever, for this description attempts to describe a parcel of land by subtracting therefrom an indefinite number of acres. No one, a surveyor or otherwise, could determine the land conveyed by the county to Weltys, either by boundaries or in acreage amount. Likewise, it is quite evident that it is entirely impossible to determine the location of the 17 acres (assuming that the exact acreage is 17 acres, not more or less) that is to be subtracted from the description in the defenants' deed. Seguin et al. v. Maloney-Chambers, 198 Or 272, 253 P2d 252, 256 P2d 514. It must, therefore, follow that the conveyance under which the defendants Welty claim, being void for uncertainty, they cannot prevail.
The cause is reversed with instructions to enter judgment for the plaintiffs. | 1ce9df88997315fa711d41524aa5dcf7b2b0070a9c940aa4f4081ca1f2f57df6 | 1954-09-22T00:00:00Z |
4374c5dd-000a-41ce-8575-49af2826bf4e | State of Oregon v. Kader | 201 Or. 300, 270 P.2d 160 | null | oregon | Oregon Supreme Court | Affirmed May 12, 1954.
*301 Nels Peterson and Frank H. Pozzi, of Portland, *302 argued the cause for appellant. With them on the brief was Sidney I. Lezak, of Portland.
J. Raymond Carskadon and Charles E. Raymond, Deputy District Attorneys, of Portland, argued the cause for the respondent. With them on the brief was John B. McCourt, District Attorney, of Portland.
Before LATOURETTE, Chief Justice, and WARNER, ROSSMAN, LUSK, BRAND and PERRY, Justices.
AFFIRMED.
ROSSMAN, J.
This is an appeal by the defendant from a judgment of the circuit court which found her guilty of the crime of manslaughter (ORS 163.040). The indictment charged that on January 23, 1952, the defendant, "by the use of the hands", killed her three-year-old daughter Sherry by asphyxiation. The indictment was appropriate to a charge of murder in the first degree. The defendant's plea was "not guilty."
The defendant submits assignments of error which challenge rulings adverse to her that (1) denied a motion made by her for a directed verdict on the ground of insufficiency of the evidence; (2) refused to instruct the jury upon excusable homicide; (3) instructed the jury upon the subject of consciousness of guilt; (4) permitted a medical witness called by the state to express an opinion concerning the cause of bruises which appeared upon the deceased's face; and (5) refused to order a state witness to produce papers from which he had refreshed his memory before entering the witness stand.
The face of the deceased child had discolorations under the chin, upon both cheeks and over the bridge of the nose. The state claims that January 23, 1952, *303 between 3:15 and 5:00 p.m. the defendant clasped a hand firmly over the mouth and nose of Sherry, causing the discoloration thereby and effecting her death through asphyxiation. No person who testified saw the purported act occur. The state also claims that after the defendant had brought about Sherry's death she cast the body into a sump upon the grounds of the East Side plant of the Portland Gas & Coke Company. The plant is situated a few blocks from the home which the defendant occupied. January 25, at about midnight, she led the officers to the sump and showed them the body floating in water which filled the lower two feet of the sump. The latter was seven feet wide and nine feet long. Its depth was about 12 feet. Old-fashioned cellar doors which met in the middle covered the top.
The defendant, 21 years of age, was the mother of two children, one of whom was the deceased Sherry, three years of age, and the other was Georgina, known as Vickie, four years of age. The trial judge ruled that, due to Vickie's tender years, she was not competent to give testimony. The defendant did not testify. The first assignment of error renders it incumbent upon us to review the evidence, especially that which the state produced. The evidence covers 1,225 pages. In addition there are many exhibits.
The defendant resided with her two children in the basement apartment of a house owned by her stepfather and mother in Portland, Mr. and Mrs. Eugene Sing. The Sings occupied the main part of the house. The apartment in which the defendant and her two children lived took up only a portion of the basement. In the remaining section were a flight of stairs leading to the first floor and some rubbish which included several small pieces of concrete. Although the Sings *304 occupied the main part of the house, we shall refer to the latter as the defendant's home.
The defendant cared well for her children. The Sings described her relationship with them as generally good. Mrs. Sing declared that "sometimes she was a little bit too severe with them," and Mr. Sing believed that she was "meaner" to Sherry than to Vickie.
A taxicab driver testified that Thursday, January 23, 1952, at a few minutes after 3:00 p.m. he drove the defendant and her two daughters home from downtown Portland. On that day rain fell intermittently. Precipitation occurred around 5:00 and 6:00 p.m. When the cab reached the defendant's home, the driver lifted the children from it across the wet parking grass to the sidewalk. In so doing he came close to the faces of the children. He observed nothing unusual in their appearance. Shortly after the defendant reached home she requested Mr. Sing to drive her to a postoffice station in that vicinity, but when Sing noticed that the time was 3:15 p.m. he told her that the trip would be useless, explaining that the station's hour for closing was 3:00 p.m. Sing then drove to his brother's restaurant and did not return home until 6:00 p.m. The evidence just reviewed, according to the state, shows that the defendant was with her children on the afternoon when Sherry was killed. It also shows, so the state claims, that at that time no bruises, marks or discolorations were upon Sherry's face.
At about 5:42 p.m. of that day (January 23) two police officers who were operating a prowl car received a radio call ordering them to go to the defendant's home. Two minutes later, when they spoke to the defendant, she told them, according to one of the officers, that about 15 minutes before they came her daughter Vickie, who had been playing outside, told her that *305 "an old man with gray hair, who was dirty, in a black car, had grabbed Sherry and into his car and drove off." Upon hearing the defendant's statement, one of the officers telephoned to the central police station and the other drove the defendant and Vickie around the neighborhood in an effort to find Sherry and her purported abductor.
At six o'clock of that evening, P.E. Lippold, a sergeant of the Portland police department, called upon the defendant and was told by her that Vickie had said "the man had driven up, that he was an old dirty man, and that he had gray hair, similar to grandmother's hair, and that he was wearing coveralls with a zipper front; that it was an old dark sedan and dirty and that he had stopped and said, `Hi, little girls, come over here.' And then that he grabbed Sherry by the arm and put her in the car." At 7:00 p.m. Lippold again spoke to the defendant. This time he was accompanied by two other members of the police department. He testified:
At 11:00 p.m. of the same day (January 23) Lippold again interviewed the defendant. This time he and a fellow officer (Nolan) inquired as to the father of the children and was told that the father was a Mr. George Dollarhide who lived in California. The *306 defendant expressed the belief that Dollarhide was not the person who had taken Sherry, for, according to what she told the officers, "the children knew George and that Vickie certainly would have known if that man that did pick up Sherry was George." She explained that Dollarhide had not seen the children "for over a year", but, later, as the interview progressed, said that Dollarhide had been in Portland within the last four months and had seen, not only the children, but also the defendant and Mrs. Sing.
The defendant's mother, Mrs. Sing, was employed in a Portland store. On January 23 the mother and the defendant's stepfather reached home at about 6:00 p.m. At that moment the defendant was upon the porch talking to a police officer. According to Mrs. Sing, the defendant "was kind of hysterical" and her hair "was hanging down like she was wet, and Vickie looked like she was wet too." She wore a coat. Sing also noticed the defendant's hair and, as a witness, described it as "all stringy, so wet. * * * both her and the girl was soaking wet." One of the police officers gave a similar account of the condition of the defendant's hair. The significance which the state attaches to the description just quoted will appear later. Presently the defendant told Mrs. Sing that "Sherry disappeared, that she was gone; she let her out to play and I don't know, all that." After the police officers had left and the defendant had accompanied her mother into the house the two had a conversation which the mother recounted in this way:
The events which we have so far mentioned occurred, so the witnesses swore, Wednesday, January 23.
Thursday, January 24, the police continued their investigation into the disappearance of Sherry. At about 9:30 a.m. J.H. Braley and Albert Eichenberger, both officers in the police department, accompanied by two members of the Federal Bureau of Investigation, called upon the defendant. Braley testified that Eichenberger and the two federal officers questioned her about the purported disappearance of Sherry and that while the questioning was in progress he played with Vickie. We now quote:
Presently the defendant directed her attention to Vickie, so Braley swore, and said, "Vickie, don't talk to that man any more." Eichenberger, referring to the same incident, testified:
William D. Browne, chief of detectives of the Portland Bureau of Police, also spoke to the defendant on the day following the purported kidnaping, that is, on the 24th. Although the defendant had told officers Lippold and Nolan the preceding evening that she did not suspect George Dollarhide, father of the children, she made contrary statements to Browne. Dollarhide had a sister who had displayed an interest in the children. According to Browne, the defendant told him: "It must have been them, Dollarhide and his sister in Los Angeles." At that point Browne communicated with the police of Los Angeles, San Francisco and other cities in an effort to locate the Dollarhides. Through the San Francisco police he was informed that Dollarhide had donated a pint of blood to the Red Cross on the afternoon of the purported kidnaping. The Los Angeles police reported that Dollarhide's sister was living in that city and that she was in Los Angeles on the day of the disappearance. Upon receipt of that information, Browne spoke to the defendant. The following is taken from his testimony:
*309 Shortly after that conversation Browne sent for the defendant. We again quote from his testimony:
Joseph H. Blewitt, a member of the police department's homicide detail, interviewed the defendant January 24. Blewitt was accompanied by other members of the department, including one Robert McKeown. The questioning occurred in one of the offices of the bureau and commenced at 5:00 p.m. In its course the defendant stated, so Blewitt swore, that on January 23, at 5:30 p.m., Vickie came to her with a report that "an old gray-haired man with coveralls, driving an old dark sedan, had taken Sherry away." Evidently Blewitt and McKeown doubted the defendant's story, for they plied her for details. According to Blewitt, she replied that "she knew nothing further." After a recess the session resumed at 9:00 p.m. The officers had decided to accuse the defendant of having brought about the death of Sherry. When they made the accusation they met with a denial. Next, a new tack was taken which McKeown described in this way:
After further questioning in similar vein, accompanied by admonitions to the defendant that she ought not permit the body of her daughter to remain unburied, the defendant told the officers, according to the testimony of both, that she would take them to the place where Sherry's body lay. The hour was 11:30 p.m. The two officers, accompanied by the defendant and a member of the Women's Protective Division, thereupon entered a police car and, obedient to the directions of the defendant, drove to the East Side plant of the Portland Gas & Coke Company, which is located a few blocks from the defendant's home. Upon reaching the plant, the party entered on foot an area occupied by large storage tanks. Eventually the defendant came upon a large covered sump and, pointing to it, said, "There she is." When the lid was removed and a flashlight was turned into the dark pit Sherry's body was seen floating in water at the bottom of the pit. Evidence which the jury could reasonably believe indicated that death had occurred about 48 hours previously. After the defendant had shown the officers the body, she and they went to the defendant's home. Then the coroner removed the body from the sump.
In the automobile on the way to her home, the defendant, according to Blewitt's testimony, said that after she returned home from the taxicab ride on January 23 she noticed Vickie standing in the kitchen and
The defendant told the officers that she believed that Vickie had caused Sherry's death and that she did not want her to be arrested. Blewitt, going on with the account which he said the defendant gave, partly in the car, partly in the defendant's home and the remainder in the police station, continued as follows:
Officer McKeown, in relating the account which the defendant gave on the trip from the gas works to her home and from there to the police station, testified that, according to it, Vickie "had a funny expression, the way she put it, on the face, and she asked her what was the matter and the little girl said she was afraid to tell her." It was at that point that Vickie, according to the account, said that the children had been playing soldier and that "the soldier had hit Sherry." Then, according to the account, the defendant coached Vickie "into telling the kidnap story and of even taking her *312 outside and showing her a gray-haired man that was getting into an automobile and telling her that was the man that's got Sherry."
After the officers had remained in the defendant's home for about 20 minutes and had taken notice of the staircase, the party returned to the police station where the officers continued their questioning of the defendant. One of them explained to her that they thought that she "was shielding someone else and we didn't want her to suffer for a crime that she hadn't actually committed." Before long the defendant expressed a wish to make a written statement. At that point a stenographer was called and while the defendant spoke, the stenographer typed her words. The defendant signed the statement. A copy of it follows:
After the defendant had signed the typed statement, the officers told her that they did not believe that a woman of her small size could have carried for the required distance a body weighing more than 30 pounds and asked her whether "a boy friend had helped her." According to the officers' testimony, the defendant answered by attributing the death to Mr. Sing. McKeown, in giving her answer, spoke as follows:
After the defendant had made that explanation, the officers confronted her with Mr. Sing. At that juncture she declined to repeat the statement which accused him of Sherry's death. Both at that time and also as a witness, Sing denied any knowledge of the manner in which Sherry had come to her death.
The witnesses whom we have mentioned met with no express contradiction and, so far as we can observe, the jury could reasonably have believed them. The only other testimony which is sufficiently material to the assignments of error to warrant a review came from Dr. Howard L. Richardson, a witness for the state, and from Drs. Normal L. Bline, Kenneth Livingston, Charles M. Grossman and Jeff Minckler, witnesses for the defendant.
Dr. Bline is a specialist in radiology. After being shown X-ray photographs of the skull of the deceased, he testified that they showed a fracture "extending across the parietal bone" above the right ear. He expressed a belief that the fracture "could possibly" have occurred during the autopsy. Dr. Richardson later swore that he produced the fracture in performing the autopsy and showed how he had done it.
The brief submitted to this court by the defendant's counsel says:
The state and the defendant disagree as to the agency which shut off the child's access to air. The state *316 claims that the agency was the hand of the defendant clapped tightly over Sherry's nose and mouth. Dr. Grossman agreed that "if the hand is placed in the proper way it can cause obstruction to the air passage." The defendant claims that asphyxiation came about in this way: a blow upon her head rendered the child unconscious. Thereupon a regurgitation of food occurred which filled the air passage. In the meantime, through involuntary action, the glottis closed. The closure of the latter may have been induced, according to the defendant's theory, by stomach acids which came into contact with the glottis when the regurgitation occurred.
Dr. Richardson gave testimony in support of the state's theory. Drs. Livingston, Grossman and Minckler supported the defendant's theory. Drs. Livingston and Grossman did not see Sherry's remains. Dr. Minckler made a cursory examination of them but not until after the autopsy. He did not depend upon what he had seen when he gave his testimony. The deductions drawn by Drs. Livingston, Grossman and Minckler were based upon facts disclosed by Dr. Richardson's autopsy and their medical knowledge.
January 26, 1952, Dr. Richardson performed the autopsy. It was evidently thorough, for in its course he removed and examined all of Sherry's organs. He even cut the skull from the body and examined the brain tissues for the purpose of ascertaining whether any hemorrhage had occurred. Before making the autopsy, Dr. Richardson took photographs of the body, not only by the usual process which yields photographs in black and white, but also by color photography which produces slides that are projected, life size, upon a screen. All of the photographs became exhibits and the colored ones were used for the purpose of showing the discolorations upon Sherry's face.
*317 Dr. Richardson found an area over the left ear of the deceased, about two inches in diameter, which he termed a hematoma. The fracture in the skull which Dr. Bline mentioned, and which Dr. Richardson swore was caused during the performance of the autopsy, was upon the right side of the skull. The hematoma occurred before death. It was a swelling under the scalp about two inches around and somewhat less than a half inch in thickness. In layman's language, it was a welt or bump. No witness knew its cause. However, Dr. Richardson stated that it could have resulted from a fall or a blow. He did not believe that it was caused by any of the cement blocks in the basement of the Sing house because, according to him, the sharp edges of a block of cement would have pulled out some of the hair and would have made a laceration in the scalp. Dr. Richardson examined the brain structure for the purpose of determining whether there was any evidence of hemorrhage. He found none. He did not know whether the blow which caused the hematoma could have rendered the child unconscious.
Dr. Richardson described in detail the discolorations upon the cheeks, the chin and across the bridge of the nose. He believed that they occurred before death. They displayed, so he said, a definite contour, circular in form, and could have been made by a hand held tightly over the nose and mouth.
Dr. Richardson's autopsy disclosed no evidence of water or algae in the lungs. As we have said, it is agreed that the cause of death was asphyxiation. The evidence just mentioned not only shows that drowning was not the cause of death, but it also establishes that Sherry did not breathe after her body was cast into the water at the bottom of the sump.
Dr. Richardson found no bruises upon the back, chest, arms, legs, knees, elbows, torso or abdomen of *318 the body. The heart, according to him, was "tremendously dilated" and there were excessive quantities of blood in the liver, spleen and lower organs. He explained the dilation of the heart by saying that it was filled with blood which it was unable to pump through the pulmonary circulation. The liver and spleen are secondary reservoirs of blood, so he explained, and when the heart is unable to force the blood on its way it backs into those reservoirs.
The examination made by Dr. Richardson of the remains disclosed, in addition to the foregoing, the following: (1) vomitus which filled the nose and mouth; (2) a few particles of food in the trachea; (3) no particles whatever of food in the bronchi; (4) a ballooning of the lungs; and (5) a swelling of the glottis which constricted it to a passageway the size of a lead pencil's point.
The following states Dr. Richardson's belief of the manner in which death occurred; in giving it he employed charts:
Dr. Richardson, in the above way, expressed his belief that the little child's air passages were completely blocked by an outside force. In speaking of an outside force, he had in mind a hand held tightly over the child's nose and mouth.
We have mentioned the fact that when the body was recovered it was found that the mouth and nose were filled with food partially digested. The witnesses called that matter vomitus. Dr. Richardson explained its presence by saying:
It will be recalled that no particles of food were found in the bronchi or lungs. Dr. Richardson, as we have seen, swore that if an outside force had not closed the *321 air passages, food particles would have been "sucked back into the lungs." That is, the inhaled air would have carried them along the passages leading to the lungs. He accounted for the presence of the few particles in the trachea by saying that the movements to which the body was subjected after death may have forced them into that organ. It will be recalled that the glottis was not completely closed.
Dr. Richardson also testified:
Dr. Richardson swore that the amount of time required to produce death in the manner which he described varies with individuals. In many it might require about five minutes. We see from his testimony that he believed that a hand clapped tightly over the nose and mouth of the child could have shut off effectively her air supply. When that occurred, food would shortly belch up into the nose and mouth, but, since no air was passing into the lungs, none of the vomitus would make its way downward. In that way *322 he accounted for the absence of food particles in the bronchi. He thought that the partial closure of the glottis was possibly a "spasm of death."
We shall now portray more fully the defendant's explanation of the manner in which the asphyxiation occurred. The following, taken from the defendant's brief, introduces the defendant's theory:
Dr. Livingston testified that the blow which caused the hematoma "could have" produced unconsciousness, but, in the absence of additional facts, was unable to say whether or not it actually did so. He said:
We quote further from his testimony:
Dr. Grossman testified that the hematoma indicated that the child had received a blow sufficiently *323 severe to have caused unconsciousness. We quote from his testimony:
According to Dr. Grossman, the digestive fluids are acid and when the latter comes in contact with the glottis it causes it to close. Such was the defendant's explanation for the asphyxiation.
*324 The following is taken from Dr. Grossman's cross-examination:
The above suffices as a narrative of the evidence governing the first assignment of error. We have omitted mention of many witnesses and details.
The defendant argues that the explanation for the death which her witnesses offered is at least as reasonable as that given by the state's witnesses and that, therefore, the state has not discharged the burden of proof. For the reasons which follow, we believe that the jury could reasonably have found that the explanation given by the state's witnesses was more acceptable than that which came from the defendant: (1) Dr. Livingston could not say that the hematoma indicated a blow to the head sufficiently severe to have caused unconsciousness; (2) there was no evidence that the child drowned in its own fluids, which, according to Dr. Richardson, is generally the manner of death when a blow to the head has caused unconsciousness succeeded by regurgitation; (3) the defendant's witnesses did not account for the discoloration upon the cheeks, under the chin and across the nose. In making that statement we have not overlooked the defendant's contentions that Dr. Richardson did not make a microscopic examination for the purpose of determining whether the discolorations may have occurred after death. We think, however, that the jury could reasonably have found that the discolorations occurred prior to death. (4) Dr. Grossman acknowledged that upon death the mouth generally drops open and that thereby the contents of the mouth flow *326 out. No explanation was given as to how it happened that the vomitus remained in Sherry's mouth if a blow to the head rendered her unconscious and induced regurgitation.
From the foregoing we see that the defendant and Sherry were together in the period which is vital, 3:00 to about 5:45 p.m., January 23. Possibly we can determine the hour when death struck. As we have noticed, the defendant, at 5:40 p.m. told two police officers, who called upon her pursuant to the radio message, that Sherry had disappeared about 15 minutes previously. In the typewritten statement which the defendant signed she acknowledged that it was she who had summoned police aid. If her explanations in regard to time are accepted as truthful, the death occurred not later than 5:25 p.m. Since it was necessary for her to have made the round trip between her home and the sump, death must have occurred much earlier than 5:25. From 3:00 to 5:40 p.m. only four persons, so far as the record discloses, were in Sherry's presence the defendant, Mr. Sing, Vickie and the taxicab driver. We shall now determine whether the jury could reasonably have believed that any one of the last three caused the death. Sherry was alive when the driver departed, and no one contends that he returned or committed the crime. If the jury accepted Dr. Richardson's explanation of the manner in which the asphyxiation was effected, they could not reasonably have believed that it was the hand of Vicki, a four-year-old child, which clamped itself for five minutes over the cheeks, nose, mouth and chin of the deceased, bruised those areas and shut off the air passages. Sing left his home shortly after 3:15 p.m. while Sherry was still alive and did not return until 6:00 p.m. when he and the defendant's mother entered the house. *327 Hence, if Dr. Richardson's theory was accepted by the jury, the defendant was the only person present at the vital period who could have committed the felonious act. It will be recalled that shortly after the defendant signed her statement she told the police officers that it was not Vickie, but Sing, who caused the death. In attributing guilt to Sing, the defendant stated that she knelt down alongside Sherry's inert body and discovered the absence of breathing. According to further statements which she then made, she put Sherry's boots and mittens upon the lifeless limbs and saw Sing depart as he went out to discard the body. That explanation, of course, indicated that the defendant was present when death struck. Accordingly, the jury was warranted in finding that the defendant was with her child at the crucial moment. When the police officers called at about 5:40 p.m. and when, a few minutes later, the Sings came home, it was noticed that the defendant's and Vickie's hair was wet and that they showed other signs of having been out in the weather. Those circumstances could have been accepted by the jury as proof that the defendant had just returned from her grim mission. The defendant's own declarations acknowledged that it was her hands which cast the lifeless body into the sump. When the defendant took the officers to the sump, the cover over the latter was in place and had to be removed before the body could be seen.
The above makes it clear that the jury was justified in finding that the defendant was present when death struck and that it was she who disposed of the remains.
The defendant gave various explanations as to the manner in which her daughter came to her death. Since she was present, she had firsthand information upon *328 the subject. Let us consider the explanation given in the typewritten statement. It says that Sherry "got hit by the soldier" in the basement of the home. "Soldier" was a game which the two children had occasionally played. By making that statement and others in similar vein, the defendant evidently wished to create the impression that while the children were playing soldier Vickie struck Sherry on the head and thereby caused the death. It is clear that when Sherry's body was recovered from the sump, the nose and mouth were filled with vomitus. The defendant's medical experts, as we have seen, testified that when a child is rendered unconscious by a blow to the head regurgitation generally occurs. In the typewritten statement, as well as in her oral declarations, the defendant never mentioned vomitus. If Sherry suffered a fatal blow to her head while playing in the basement and if death occurred in the manner suggested by the defendant's expert witnesses, and not in the way described by Dr. Richardson, regurgitation must have occurred in the basement. Otherwise we have no explanation for the vomitus which filled the mouth and nose of the corpse. If Sherry became unconscious in the basement and if regurgitation there occurred, no one has explained how the vomitus remained in the mouth and nasal passages. It will be recalled that the defendant claims that after she discovered that Sherry was dead she rolled her body down the stairs five times. Dr. Grossman swore that when death occurs the mouth generally falls open. According to other statements which the defendant made, she picked up Sherry's lifeless body after she had rolled it down the stairs, flung it over her shoulder and carried it to the distant gas company plant. No explanation has been ventured as to how the vomitus could have remained in the *329 mouth and nose of the child while that course was being pursued.
Without resort to further analysis, we express the belief that the jury could reasonably have found that the defendant's statements, whether they attributed guilt to Vickie or to Sing, were virtually refuted by parts of the testimony of her own three medical experts.
The circumstances so far reviewed could reasonably have persuaded the jury to believe that (1) death did not come in the way suggested by the defendant's three medical experts; (2) Sherry's life was taken in the manner which Dr. Richardson explained; (3) the defendant cast the corpse into the covered sump for the purpose of concealing evidence of a crime. But the evidence so far analyzed does not single out the defendant's hand and identify it as the one which snuffed out her daughter's life. We shall now analyze another segment of the evidence.
There is a material difference between the guilty and the innocent when a crime has been committed in secrecy. The innocent have no consciousness of guilt and have nothing to conceal. The perpetrator of the crime, upon the other hand, generally has a consciousness of guilt and is in possession of information which he knows the law enforcement agencies seek. He holds a secret which he must guard, for if he divulges an inkling of it the consequences to him will be grievous. His consciousness of guilt engenders fear of apprehension and of the consequences which will ensue if his guilt is discovered. A consciousness of that kind influences conduct as surely as does any other motivating force. One with a consciousness of guilt who wishes to escape detection must become an actor and endeavor to play the part of the innocent. If he cannot successfully play the part, he may create suspicion by *330 speaking when the innocent would have remained silent, or he may maintain silence when the innocent would have spoken. In lieu of trying to play the difficult character of the innocent, the guilty may resort to flight or even to suicide. Or he may accompany his efforts at essaying the role of the innocent by giving false explanations or the destruction, concealment and fabrication of evidence.
Let us now see whether or not the defendant's conduct, as revealed by the evidence which we have reviewed, manifested upon her part a consciousness of guilt. She evidently chose the dark, deep, covered sump as Sherry's humble sepulcher out of a belief that if her daughter's body was cast into it discovery would be unlikely. Thus, at the very outset, she resorted to the concealment of evidence. She must have known when she cast the body into that place that if it ever was discovered, and if the fact came to light that she was the person who had thrown it there, a surmise would arise that she took the course in order to dissemble a homicide and the manner in which it had been effected. After she had disposed of the body, the defendant manifestly convinced herself that she would be called upon by someone to account for Sherry's absence. The course which she chose to fend off inquiries was to undertake to deceive the police and all others into a belief that a kidnaping had occurred and that Sherry was in the possession of "an old gray-haired man." If the deception proved successful, a search would be made for the purported kidnaper and not for the body. In order to render her deceit more effective, the defendant enlisted the aid of Vickie and coached the little girl into the part which she was expected to play. When the defendant saw that the police officers accepted as truthful her *331 falsehoods, she ventured to play still further the part of the innocent and so she accompanied the officers while they searched the neighborhood for Sherry, although she knew that the search was in vain. At the outset, as we have seen, she sought to fasten guilt upon the anonymous old gray-haired man. A few hours after the defendant had summoned the police, a development, which she deemed fortuitous, occurred. The officers asked her for the name of the children's father and when she gave the information she discovered that they might be willing to believe that the father and his sister had taken the child. Thereupon she summoned to her aid further deception. Although she knew that Sherry was dead, she encouraged the officers to extend their search into distant cities for Mr. Dollarhide and his sister. The search soon located the Dollarhides, and when that fact was reported to the defendant she tried to play further the part of the innocent. She inquired whether the Dollarhides had her child. In the meantime, the officers, with the defendant's support, were tracking down gray-haired men and persons who in recent months had molested children. Possibly when the defendant sent for the police she did not perceive the problems which would confront her. Officers, both municipal and federal, came in relays and the different groups asked her questions. They even sought to elicit information from Vickie whom she had coached to give a false account of Sherry's disappearance. When the defendant observed that the officers were winning Vickie's friendship, she became distrustful of the ability of her little daughter to play a false role. She thereupon reproached the officers and told Vickie to stay away from them. In that way she resorted to suppression of evidence. Before long the defendant inferred that *332 the officers were manifesting misgivings about the story which she had told them. Next, two of the officers decided to become her accusers. It was at this point that she led a detail of the police to Sherry's dank vault. At that juncture a new explanation was put forth and this time the defendant lay the death at the feet of Vickie. When the officers disbelieved the new story and protested that the defendant could not have carried the body from her basement to the gas company's plant, still another story came forth. This time the defendant accused her stepfather of Sherry's death and claimed that it was he who disposed of the body.
From the above circumstances we see that the jury could have believed that the defendant, in trying to guard her secret, found it necessary to employ deceit and to resort, not only to the fabrication of evidence, but also to its suppression. Her conduct betokened a consciousness of her own guilt and pointed to her as the one who had shut off the air passages of Sherry, thereby asphyxiating the little girl. The contention, obliquely advanced, that the defendant adopted her course for the purpose of shielding Vickie clearly was not accepted by the jury. The latter had good reason for rejecting that contention. First, as we have seen, the tiny hand of Vickie could not have committed the crime. Next, after the defendant had signed the statement upon which the contention is based, she repudiated the accusation and turned upon Sing.
1. The defendant recognizes that evidence showing consciousness of guilt is admissible in cases of this kind. The rule is stated and copiously illustrated in Wigmore on Evidence, 3d ed, §§ 273 through 293. Examples of its application in this state are State v. Hansen, 195 Or 169, 244 P2d 990; State v. Broadhurst, *333 184 Or 178, 196 P2d 407; State v. Henderson, 182 Or 147, 184 P2d 392; State v. Clark, 99 Or 629, 196 P 360; and State v. Zullig, 97 Or 427, 190 P 580.
2, 3. The person who committed a crime usually knows the exact manner in which he perpetrated it. Therefore, when he manifests a sense of guilt in the days which follow the commission of his crime, his self-condemning behavior betrays the manner in which he committed the misdeed. From the fact that he displays a sense of guilt, the jury may reasonably infer that he is guilty. Wigmore on Evidence, 3d ed, § 173. And if the manner in which the crime was committed is known, his sense of guilt, when established, warrants a belief that he committed the crime in that manner. When, as in the present case, evidence shows that (1) the death was effected by the hand of some person which shut off the air passages, (2) the defendant was present when death occurred, and (3) immediately after the death the defendant manifested a consciousness of guilt, the jury was authorized to reason that it was the defendant's hand which asphyxiated her daughter.
4-6. We are in accord with the defendant's contentions that when the state depends upon circumstantial evidence, the latter must be satisfactory and inconsistent with any reasonable theory of innocense. We are satisfied that the evidence in this case meets that standard. The jury was not bound to accept as true any exculpatory matter contained in the statement which the defendant signed and which is quoted in a preceding paragraph. State v. Monk, 199 Or 165, 260 P2d 474, and State v. Ausplund, 86 Or 121, 167 P 1019. According to our belief, the jury was warranted in concluding that the hand of the defendant closed tightly Sherry's air passages until the little girl was asphyxiated. The first assignment of error lacks merit.
*334 7-9. Before considering the second assignment of error we shall move on to the third which attacks an instruction which was given to the jury upon the subject of consciousness of guilt. The exception which the defendant took to the instruction is manifested by the record in this way:
In challenging the instruction, the defendant's brief says:
This court has many times held that an exception such as that which the defendant saved by the quoted words is insufficient. In Smith v. Pacific Northwest Public Service Company, 146 Or 422, 29 P2d 819, it is said:
A recent holding to similar effect is Garrett v. Eugene Medical Center, 190 Or 117, 224 P2d 563. In Wilson v. State Industrial Accident Commission, 189 Or 114, 219 P2d 138, the decision of this court, written by the Chief Justice, said:
State v. Johnston, 143 Or 395, 22 P2d 879, which was based upon a charge of embezzlement, says:
In that case, this court held that an exception which challenged an instruction as "against the law" was insufficient. See, to the same effect, State v. Poole, 161 Or 481, 90 P2d 472.
10. Notwithstanding the insufficiency of the defendant's exception, we gave careful attention to the challenged instruction. Although we do not believe that the instruction is entirely perfect, yet it is not subject to the attack made upon it by the defendant. We dismiss this assignment of error as without merit.
11. The second assignment of error follows:
At that point the requested instruction incorporated within itself the exact phraseology of § 23-418, OCLA.
In support of the assignment of error, the defendant's brief says:
Although the record indicates that Sherry's death resulted from homicide, we have been unable to find anything therein which could have warranted the submission of instructions upon the subject of excusable *337 homicide. The decisions cited by the defendant do not hold that a trial judge must instruct upon excusable homicide, even in the absence of evidence indicating that the homicide was justifiable. In State v. Way, 120 Or 134, 249 P 1045, 251 P 761, which was reversed on the ground that the trial judge erroneously failed to instruct on excusable homicide, this court carefully pointed out that the record contained evidence capable of a reasonable belief that the defendant struck the fatal blow in self-defense. State v. Trent, 122 Or 444, 252 P 975, 259 P 893, held that, since the evidence did not suggest a defense of justifiable homicide, the trial judge properly declined to instruct upon the subject. We find no merit in this assignment of error.
The fourth assignment of error reads as follows:
Dr. Richardson, who expressed the challenged opinion, has had extensive experience in performing autopsies *338 and in making examinations for the purpose of determining, if possible, the means whereby death in homicide cases was effected. Before he expressed the above-quoted opinion he had described the manner in which he had performed the autopsy and the detailed examination which he had made of the bruises and discolorations.
The defendant claims that the subject matter of Dr. Richardson's opinion is not within the area of expert opinion and that a jury was as capable of forming a correct opinion upon the subject as he. Therefore, according to the defendant, Dr. Richardson's opinion was inadmissible and, since his challenged testimony was upon a vital issue, the error is reversible.
The cases cited by the defendant do not support her contentions. In State v. Barrett, 33 Or 194, 54 P 807, a police officer testified that, in his opinion, a body had been moved from the position and place where it fell after being shot. This court pointed out that the witness was not an expert on the subject of how men fall when they are shot, and indicated doubt whether the matter was a proper subject for expert testimony. In State v. Jennings, 48 Or 483, 87 P 524, 89 P 421, a witness gave his opinion as to the direction from which a bullet had been fired. The opinion was based upon the witness's inspection of the blood which was splattered around the corner of the room where the deceased was shot. The witness was not qualified as an expert. The record was silent as to the position of the body and the location of the blood stains. State v. Morris, 83 Or 429, 163 P 567, involved the testimony by a physician that the choking of the victim could not have been accidental. This was held not to be reversible error because, under the circumstances of that case, *339 the jury could not have reached a different result. It is worthy of note that the objection was made, not to his opinion that the marks on the deceased's throat were finger marks, but that the strangulation was not accidental.
12, 13. The question submitted to Dr. Richardson in this case is clearly distinguishable from the subjects of inquiry in the cited cases. We think that the causes of discolorations on a human body are not a matter of such common knowledge that a jury can correctly ascertain their probable cause. The character of the discoloration is a matter of expert knowledge. It might be a bruise, a broken blood vessel or post-mortem lividity. If it is determined to be a bruise, the nature of the force and instrument causing it is by no means self-evident. It may have been caused by a fist, the palm of the hand, a sharp instrument, a blunt instrument, something with a pliable surface or an instrument with a hard, jagged edge. Involved in the inquiry is something more than the symmetry of the markings. Anyone who undertook to answer the question submitted to Dr. Richardson would have to be able to determine the amount of force which was exerted. In the present instance, the amount of force was indicated to some extent by the ballooned lungs and the condition of the heart. We cannot say that the cause of a bruise is as well known to laymen as to an expert. It is our belief that a physician of the competence of Dr. Richardson, and who had conducted an intensive investigation for the purpose of ascertaining the manner in which death was caused, was qualified to answer the question propounded to him. Goldfoot v. Lofgren, 135 Or 533, 296 P 843; State v. McDaniel, 39 Or 161, 65 P 520; State v. Barton, 5 Wash 2d 234, 105 *340 P2d 63. We dismiss the fourth assignment of error as without merit.
14. The fifth assignment of error charges as follows:
Preceding paragraphs of this opinion review Mr. Lippold's testimony. He was the second of the many police officers who testified. While upon the witness stand he used no notes, but upon cross-examination it developed that "within the last couple of days" he had consulted notes which he had made. He explained, "There's some details I wanted to check on." The examination presently continued:
The testimony given by Lippold was only corroborative of that given by other officers who also testified without notes. They were not asked whether they possessed any notes or had refreshed their recollections.
In support of this assignment of error, the defendant depends in part upon § 4-707, OCLA (ORS 45.580), which says:
*341 The defendant concedes that the decisions of this court are adverse to her contention. State v. Magers, 36 Or 38, 58 P 892, and State v. Yee Guck, 99 Or 231, 195 P 363, held that a witness, who possesses an independent recollection of the events, cannot be required to produce a writing which he used to refresh his memory before entering the witness stand. It is advisable to take note of the fact that in those two cases, as in the one at bar, the witnesses had an independent recollection. Those two cases, therefore, were not concerned with records of past recollections. Wigmore on Evidence, 3d ed, § 762, note 4; see, also, 18 Or L Rev 136, which argues that § 4-707, OCLA, fails to distinguish between "past recollection recorded" and "present recollection revived."
The brief filed by the defendant calls our attention to Wigmore on Evidence, 3d ed, § 762, where it is stated:
A footnote, at page 315 of Deady, General Laws of Oregon, 1845-1864, says:
State v. Magers, supra, and State v. Yee Guck, supra, in reaching their conclusions, quoted extensively from *342 Greenleaf, the very fountainhead of § 4-707, OCLA, and then interpreted the latter in harmony with the rule espoused by Greenleaf. In view of that fact, we do not believe that we are at liberty to adopt the point of view advocated by Wigmore, although if we had the rule-making power we would find it hard to resist the merits of the rule which he advocates. Possibly those who have the rule-making power will consider Wigmore's suggestion. We find no merit in the fifth assignment of error.
The above disposes of all the contentions advanced by the defendant. Although we have considered all of the assignments of error, we have found no merit in any of them. The trial judge bestowed painstaking care upon every contention which the defendant presented. She had a fair trial and it was free from error. The judgment of the circuit court is affirmed. | ba9eee1e9735ff8bb5b1e5006ddb263b93565cc74c3a721316239536d1d6597a | 1954-05-12T00:00:00Z |
ac6a25a9-34ac-4ef1-a68b-0a15c44fd399 | Fowler v. COURTEMANCHE | 202 Or. 413, 274 P.2d 258 | null | oregon | Oregon Supreme Court | Reversed and remanded September 15, 1954.
Petition for rehearing denied November 3, 1954.
*417 C.X. Bollenback and Elton Watkins, of Portland, argued the cause and filed a brief for plaintiff-appellant.
*418 Hugh L. Biggs, of Portland, argued the cause for defendants-respondents and cross-appellants. On the brief were Cleveland C. Cory, and Hart, Spencer, McCulloch, Rockwood and Davies, all of Portland.
Before WARNER, Acting Chief Justice, and LUSK, BRAND and PERRY, Justices.
REVERSED AND REMANDED FOR A NEW TRIAL.
BRAND, J.
This is an action at law for compensatory and punitive damages on account of the alleged wrongful and malicious conversion of a number of logging trucks and trailers and certain other logging equipment. The plaintiff is Irwin W. Fowler. The defendants named in the complaint were L.A. Courtemanche, an individual, L.A. Courtemanche, a corporation, Automotive Equipment Company, a corporation, and The Courtemanche Acceptance Corporation. The case against L.A. Courtemanche, an individual, was dismissed. There was a verdict for plaintiff in the sum of $9,240.69 as general damages and $35,000 as punitive damages against the three corporations and judgment was entered on the verdict. Thereafter the defendants moved for judgment notwithstanding the verdict and in the alternative for an order setting aside the judgment and entering one in favor of plaintiff for the amount of the compensatory damages only. In event the foregoing motions should be denied, defendants moved for a new trial. The court found that the defendants' motion for a directed verdict, made at the trial, should have been granted and that the motion for judgment n.o.v. should be allowed. Judgment to that effect was entered. The court also found that the alternative motion to eliminate the verdict for punitive damages was well-taken and would have been allowed if it had *419 not granted the motion for judgment n.o.v. The plaintiff appeals.
We shall refer to the three corporations collectively as "the defendants." L.A. Courtemanche, a corporation, will be referred to as "Courtemanche"; Automotive Equipment Company as "Automotive"; and The Courtemanche Acceptance Corporation as the "Acceptance Corporation".
We deem it unnecessary to review the pleadings at this time. The defendants-respondents very properly state in their brief that "Appellant's statement of the case and the facts is substantially accurate." We turn to the facts thus stated.
Early in 1950 the plaintiff negotiated for the purchase of certain personal property which is described, together with other property, in the complaint. It appears that some of the property belonged to Courtemanche and some to Automotive, but the rights between these two defendants were adjusted among themselves. The property was purchased by plaintiff from Courtemanche and plaintiff executed a note and chattel mortgage to Courtemanche for the full purchase price which was stated to be $102,177.78. In order to give to the mortgagee additional security the plaintiff included in the mortgage certain personal property owned by him in addition to that purchased from Courtemanche, which additional property was of the reasonable market value of $24,000, according to the testimony in behalf of plaintiff. Particularly included was a 1947 Peerless trailer, the property of plaintiff. The note provided for 10 per cent interest per annum and the mortgage provided for payments in instalments of $5,700 monthly, beginning on 25 May 1950 until principal and interest were paid. The sum of $102,177.78 which is recited in the mortgage as the *420 amount owing included substantial financing charges and prepaid interest until maturity. Courtemanche, the mortgagee, assigned the note and mortgage to the Acceptance Corporation, which pledged both to a bank, taking a loan thereon sufficient to cover its payment to Courtmanche. The amount which became due and owing between the execution of the mortgage and the alleged conversion of the property on 6 October 1950 was $28,500. The payments which were made by the plaintiff prior to 6 October 1950 amounted to $26,667.87. It follows that on the latter date plaintiff was in default unless he was entitled to a further credit sufficient to cover the apparent default of $1,832.13. The plaintiff contends that he was entitled to such an additional credit and the defendants in their brief say:
The facts on which the plaintiff relies as proof that he was not in default on the date of the seizure relate to a certain Peerless trailer which was owned by the plaintiff and included in the mortgage to Courtemanche as additional security along with the property purchased by the plaintiff. The trailer was unsuitable for *421 the operations in which plaintiff was engaged and it was agreed by the mortgagor and the mortgagee that the trailer might be sold.
During the latter part of April or early in May, the plaintiff left the trailer with the Pierce Trailer Company with instructions to sell it for not less than $2,500, and it was sold some time in June according to the testimony of Louis Courtemanche. Some time later the plaintiff inquired of Mr. Louis Courtemanche, who was vice president of all three of the defendant corporations, as to what disposition had been made of the trailer. We quote the plaintiff's testimony:
The Acceptance Corporation was the only one of the defendants which had any right to deal with the property covered by the mortgage or to authorize its sale. The Acceptance Corporation received the proceeds of the sale in the sum of $2,500. According to the testimony of plaintiff, Mr. Hansen who was vice president and manager of Automotive stated that they had to pay *422 a commission of $250 to the Pierce Company. Louis Courtemanche testified, "we paid the L.H. Pierce Company $125 commission for selling it." He also said, "We paid our salesman $125 and paid the Pierce Company $125." He also admitted that in a previous deposition he had stated that he had paid the Pierce Company $250. The salesman who received the $125 commission was an employee of Courtemanche. The three defendants were separately incorporated but in the dealings with the plaintiff they appear to have acted as one and we think that under all of the evidence the jury could find that all three defendants through their common vice-president, Louis Courtemanche, cooperated in the alleged conversion. The defendants' brief makes no contention that we should consider the issues as to each defendant separately.
Although the Acceptance Corporation, as mortgagee, was the one who authorized the sale of the trailer, the net proceeds of the sale were turned over to Courtemanche, a separate corporation. The defendants contended that Courtemanche had installed air scales on two of the trucks which were covered by the mortgage and that the plaintiff owed that corporation $1,502.85 as payment therefor. The plaintiff testified that he had a conversation with Louis Courtemanche concerning two International trucks which he ultimately bought from Courtemanche, the corporation. We quote:
There is additional evidence supporting plaintiff's testimony. The agreed amount to be paid to Courtemanche by the plaintiff was stated in the mortgage to be $102,177.78, which did not include the $1,502.85 item for the air scales.
1, 2. The defendant, in a letter dated 25 April, wrote the plaintiff that in rechecking the account they had failed to include the item of $1,502.85. Clearly there was evidence from which the jury could find that the plaintiff did not owe Courtemanche for the air scales and we presume from its verdict that they did so find. It was the claim of the defendants that they were entitled to apply the net proceeds from the sale of the plaintiff's trailer to the reduction of an open account of Courtemanche against the plaintiff on account of his alleged indebtedness for the air scales. Courtemanche notified the plaintiff in writing that "it is Mr. Courtmanche's intention to handle this at the time the details are handled in connection with the sale of your trailer." Much is made of the fact that the plaintiff did not answer this letter in writing, however, he testified as follows:
The record sufficiently presented a jury question, first, as to whether the plaintiff owed anything for the air scales, and second, whether he ever authorized the mortgagee Acceptance Corporation to apply the proceeds for the sale of mortgaged property to the payment of a disputed claim of another or different corporation, or ever acquiesced in any such application. The inherent improbability of a such a transaction was a matter to which the jury could give consideration. We now return to the brief of the defendants wherein it is said:
The trial court correctly found that the jury did believe the testimony of the plaintiff. It its opinion upon the motion for judgment n.o.v., the trial court said: "The Court, therefore, at the trial in effect set aside the application of the trailer proceeds to the open account. *425 To this extent I am satisfied that my decision was correct." Thus far we are in agreement with the decision of the trial court. The trial court further found that the plaintiff had not directed the application of the proceeds from the sale of the trailer "to any particular part of the mortgage debt." Since the proceeds could not be applied to the open account with Courtemanche and since the plaintiff had not directed that the payment be applied to any particular instalment of the mortgage debt, it became the duty of the trial court to make the proper application. That court considered three possible applications of the proceeds: (1) To an instalment of the mortgage due at the time of the application or to the first instalment coming thereafter; (2) to the last instalment to become due under the mortgage, or (3) to all of the instalments of the mortgage pro rata. The trial court correctly said:
At the jury trial the court had instructed, in effect, that unless the jury found that the defendants had proved the existence of an indebtedness for air scales, and that the plaintiff had agreed that the trailer proceeds should be paid to Courtemanche on the open account, then the mortgage was not in default and the defendants would have had no right to take the property *426 on account of such alleged default in payment. On the motion for judgment n.o.v., however, the court held that such application was erroneous and that the proceeds from the sale of the trailer should be applied by it to the last instalment or to all of the unaccrued instalments pro rata.
The defendants, who filed a joint answer, have abandoned the contention made at the trial, and in effect, concede that the jury has disposed of their claim that the proceeds should be applied to the open account of Courtmanche. They now defend the decision of the trial court which was that the application of the proceeds should not be made to the balance due under the mortgage at the time of the seizure, but should be applied to later unaccrued payment or payments. In view of the record and of the verdict of the jury, neither party can now claim the benefit of any estoppel against the other.
3. The general rules which serve as a background to the issue are not in dispute: (1) A debtor who makes payment to his creditor having two or more claims may designate the claim to which the payment is to be applied; (2) if the debtor fails to do so, the creditor may make the application; (3) if neither of them makes the application, then it is the duty of the court to make it.
Patterson v. Bank of British Columbia, 26 Or 509, 38 P 817; Fatland v. Wentworth & Irwin, 149 Or 277, 40 *427 P2d 68; C.D. Johnson Lumber Corp. v. Leonard et al., 192 Or 639, 227 P2d 179, 232 P2d 804, 236 P2d 926.
4. The pending case falls within class 3. It is true that the creditor, the Acceptance Corporation, attempted to apply the credit, but not to any claim belonging to it. When a debtor pays his creditor, the mere fact of payment amounts to an application of the fund to some obligation held by that creditor. The rules governing the right of a creditor to determine the application of payments, as between several claims held by him, have no relevancy to attempted application of payments by a creditor to the claims of other creditors.
5. Again, this case is not controlled by the decisions which hold that in the absence of directions from the debtor, the creditor may, at his option, apply payments to an unsecured account rather than to one for which he holds security. Here the creditor had only one claim, all of which was secured. At the trial of the case, the Acceptance Corporation was still attempting to make an unlawful and unauthorized payment to a third party, to wit, to Courtemanche. It is now too late for it to change position by claiming that it has exercised an option to apply the payment from sale of the trailer to unmatured instalments on the mortgage.
6. In Fawkes v. Curtis, 133 Or 20, 286 P 981, an owner negotiated a loan secured by a mortgage on his property, which loan was to be used in constructing a building thereon. The owner then entered into an agreement with the general contractor and he, with a subcontractor, for construction of the building. The owner *428 owed the contractor in excess of $3,500 and directed the loan company to pay that amount to the subcontractor, who also had a lien on the building. The payment was in reality made to the general contractor. The contractor owed the subcontractor for money loaned, which was unsecured. In apparent agreement with the contractor, the subcontractor attempted to make application of part of the $3,500 to the payment of the unsecured loan. This court held that the money which was received from the building fund on the subcontract should be credited on the subcontractor's lien claim.
In Bowles v. Clark, 59 Wash 336, 109 P 812, a similar rule was applied.
In the case at bar the plaintiff expressed to the Acceptance Corporation the intention that the proceeds from the sale of the trailer should go to reduce his mortgage debt. Even in the absence of the testimony quoted supra upon that issue, we think there is a reasonable inference that the parties intended that the proceeds from the sale of mortgaged property should go on the mortgage debt and that the credit on the mortgage should, in the ordinary course of business, be given at the time when the Acceptance Corporation received the proceeds from the sale of the trailer. However, the *429 duty to give credit for the payment at the time of its receipt does not settle the question as to how that credit is to be applied. The issue in the case can become clear only when we compare the schedule of payments which is printed in the defendants' brief with a schedule showing the plaintiff's theory of the case. We quote from the defendants' brief the following:
The schedule as set forth in the defendants' brief shows that all payments made by the plaintiff, with the sole exception of the $2,250 payment derived from the sale of the tractor, were applied to the reduction of the balance owing and that the application was made on the dates of the respective payments. The same schedule shows that the defendants credited every payment made, on the day it was made, to the reduction of the amount of delinquency existing on that day.
Following the practice of the defendants which is *430 evident from the aforesaid schedule, it would appear that the payment of $2,250 which was received on 15 June 1950 should also be credited on the date it was received and that the balance owing should be reduced by that amount on the same date and, as was the case with other payments made after the due date, it should be applied when received, to the reduction of the then-existing delinquency.
We will next set forth the same schedule employing the same figures, dates and application of payment, with this single change; that whereas the defendants' schedule shows no credit for the $2,250, we will enter that sum as a credit on the day on which it was received by the Acceptance Corporation and we will apply it in accordance with the plaintiff's theory. When this is done the only serious issue in the case will become apparent:
On 5 October defendants seize property.
From the above schedule it will be seen that payments made by the plaintiff are applied in only two ways; one to reduce a delinquency on the last preceding instalment, and two, as a partial payment on the monthly instalment then accruing but not yet actually due. The following payments were applied only to reduce existing delinquency:
*432 The following payments were made which eliminated a then-existing delinquency and left a surplus which was in each instance less than the amount which would become due on the 25th of the month in which the payment was made:
This case does not involve any question as to the proper application of payments made in excess of the amount currently becoming due. To illustrate: If a note secured by mortgage called for payments of $1000.00 on the 25th of each month and the debtor should pay $5000.00 ten days before the 25th, a serious question might arise as to the debtor's intention or if neither debtor nor creditor made the application, as to the court's duty to apply the excess of $4000.00. This question is not in the pending case and need not be decided or considered.
Here there are required monthly instalments of $5700. On June 16 the debtor paid up his delinquency and paid $2250 on payment of $5700 which was accruing and would be due 9 days later. On 6 September he paid up an overdue instalment and paid $2100 against the $5700 which was accruing and would be due on 25 September. On 4 October he paid up the delinquency which existed on 25 September and paid $417.87 against the instalment which would become due on 25 October if defendants had not seized the property on 5 October.
The question is, how should the court apply payments such as those of 16 June, 6 September and 4 October. If the plaintiff was a day or two late in making the payments due on the 25th of each month the *433 defendant could seize his property by reason of his breach. Now suppose the plaintiff had paid $5700 on the 23d which was not due until the 25th. Would anyone argue that the plaintiff would be required to pay another $5700 on the 25th in order to avoid delinquency and foreclosure? If a payment made two days early would be applied on the instalment coming due on the 25th, why would not the same rule be applied by the court if a $5700 payment was made at a still earlier time but still within the monthly period during which the instalment of $5700 was accruing. Again, if the plaintiff had paid $5000 on the 23d when $5700 was due on the 25th, would any court hold that he must pay a full instalment of $5700 on the 25th? And if plaintiff would be entitled to credit for his premature partial payment as against the next instalment due when payment was two days early, why not if partial payment was made even earlier but still within the month during which the $5700 instalment was accruing? This view is supported in Smith v. Renz, Cal App2d, 265 P2d 160. Plaintiff brought an action for declaratory judgment to determine how a large advance payment of principal made on a promissory note before any instalment was due, should be applied. The case arose between the successors in interest of the maker and the administratrix of the payee. For convenience we will refer to the parties as maker and payee, for their representative capacities are not in question. On 20 June 1947 the maker executed a note to the payee for $148,000 with interest on unpaid principal payable monthly, principal payable in instalments of $500 or more on the first day of each month, beginning on the first day of July 1952. In September 1947 the maker paid $23,500 and the payee acknowledged receipt of that amount on the note. Thus *434 a distinction between Smith v. Renz and the pending case becomes clear.
In Smith v. Renz the payment was in excess of the amount which was to become due at the time fixed for the first instalment. In the pending case the payments made in advance were less than the amount of the next accruing instalment. The trial court directed the application of the $23,500 to the first 47 instalments. The California Court of Appeals said:
The court then distinguished Harman v. Walsh, 102 Cal App2d 608, 228 P2d 333, in which payments in excess of the required monthly instalments were made for several months and thereafter the monthly payments made were less than the required amounts. The total amount paid exceeded the amount which was required. But the court held that payments in excess of a monthly requirement did not relieve the debtor from paying the full amount of future instalments. Commenting on Harman v. Walsh, the court in Smith v. Renz said:
It was held that the $23,500 must all be considered as an advance payment of the first instalment of $500 or more but that it does not in any wise affect the remaining schedule of instalments provided in the note, other than to lessen the principal sum by that amount and consequently reduce the number of instalments remaining to be paid.
If portions of an excess payment are to be applied on the first instalment, then a fortiorari a payment of less than the next required instalment should be applied to the reduction of the amount becoming due on the next instalment date.
In Smith v. Renz neither debtor nor creditor made an actual application of the excess payments. The court decided the case on what it inferred to be the intention of the parties. A similar rule should be applied when under our rule it becomes the duty of the court to make application when neither debtor nor creditor has done so.
In this case it is clear that payments which did not exceed the amount currently due and delinquent should be applied to the reduction of such delinquency. This was the way in which payments were in fact applied by the defendants as their schedule shows. But a different problem is presented when payments are made in excess of the amount of the current delinquency and which excess is less than the amount of the next accruing *437 instalment of $5700. It is necessary to decide whether such excess payments should be applied to the next accruing instalment. But if that decision is in the affirmative it will become unnecessary to decide whether such payments should be applied to that instalment on the day on which each was received or on the 25th of the month following each such payment. It is immaterial to plaintiff's case whether such excess payments be actually applied on the day received or held in suspense and applied a few days later on the 25th of the month. In either case if the excess payments of 16 June, 6 September and 4 October are applied to the next ensuing instalment the result will be that on 4 October there would be no delinquency and this would be true whether the surplus payments were each applied when received or were held in suspense and applied a few days later on the due date of the next instalment.
It is true that in some cases it might be of real importance to determine whether a premature partial payment is to be credited and applied to the next instalment on the day the payment is received or on the day when the next instalment becomes due. In such a case, as for example, where the required instalments are a year or more apart and the payments precede the due date by a long time and interest is to be paid in addition to each instalment, the court would have to decide when the application should be made, neither debtor nor creditor having made it. In that event the court would be compelled to consider the applicability of the rule of law which holds that where the instrument in question calls for payment on a day certain without option to pay at other times, a payee is under no obligation to accept payment prior to the maturity date though he may do so if he wishes. 10 CJS 1002, *438 Bills and Notes, § 462; McCarty v. Melinkoff, 118 Cal App 11, 4 P2d 595; 70 CJS 216, Payment, § 5; Waits v. Orange Creek Turpentine Corp, 123 Fla 31, 166 So 449. For the reasons indicated the problem last discussed does not arise in the case at bar.
It has been suggested that under the plaintiff's theory of application of payments the debtor would receive no credit by way of reduced interest by reason of prepayment. The first answer is that interest has been calculated and included in the monthly payments of $5700. The only obligation which the plaintiff assumed was to pay $5700 monthly. The second answer is that for the reasons indicated we do not have to decide when the payment is to be applied. The third is that in determining how justice requires that the application should be made in this case we should compare and consider the consequences of various possible applications. Assuming but not deciding that the application could not be made until the due date, we think justice would be better served by a decision involing a loss of a few days' interest than by one causing a forfeiture of more than $100,000 worth of property.
In the case at bar there never was any payment made, including that of $2250, which equalled or exceeded the amount of the next accruing instalment. Smith v. Renz, supra, is authority for the proposition that such excess payment should be applied against the next and accruing instalment. Of course the plaintiff remained obligated to pay succeeding instalments when they became due under the terms of the mortgage. The record shows that there were periods during which the plaintiff was in default but this case has been presented on the theory that the decisive question was the existence or nonexistence of default *439 in payments at the time of the seizure of the property. We quote from respondents' brief:
In another place they say:
Again we quote from their brief:
We agree with defendants that application to an early (the next) instalment would make the mortgage current at the time of repossession. But we cannot agree to the illogical statement that we would be "creating a tort where otherwise one would not exist."
It was the duty of the trial court to determine how the $2250 should be applied. By so doing it would not "create a tort". It would merely be following the usual judicial procedure. It would be finding from the law as applied to the facts that defendants had committed a tort. The argument concerning the creation of a tort could with equal force be applied in favor of the plaintiff who might say that by the trial court's decision *440 applying the payment to the last instalment the court created a default by the plaintiff "where otherwise one would not exist" and thereby forfeited over $100,000 worth of property. It is the duty of this court in accordance with the applicable law to determine how the payment of $2250 should be applied. It will not be the court but the conduct of the parties which will constitute a tort or a forfeiture as the case may be. In making the determination we think it would be an injustice to hold that the plaintiff was subject to seizure of all the property which he bought from the defendants plus property of his own which he had added to the mortgage as additional security, when it is admitted that on 4 October he had paid $417.87 more than the total of all accrued instalments and when the seizure of the property occurred on 5 October.
The facts concerning every payment made are not in dispute. In his reply the plaintiff alleged that he had paid to defendants approximately $28,917.87 and had paid sums in excess of all monthly payments theretofore coming due upon said debt. The allegation of payment includes by implication the receipt of the money paid. The undisputed evidence of the defendants shows that they had received $28,917.74 and that the last payment received was made, received and credited on 4 October, the day before the seizure.
7. Before finally determining how the payment should be applied we will consider certain principles which guide a court in applying a payment when neither payor nor payee has made the application. The general rule previously cited is that the application should be made in a manner to accomplish the ends of justice. Korbly v. Springfield Institution for Savings, supra, 245 US 330; Murdock v. Clarke, 26 P 601, 88 Cal 384.
*441 In Loeb v. Milner, 21 Neb 392, 32 NW 205, the plaintiff mortgagor brought an action against the mortgagee for the conversion of mortgaged property, as was done in the case at bar. The court said:
It was held that the mortgagee was liable for conversion.
In Anspacher v. Utterback's Administrator, 252 Ky 666, 68 SW2d 15, the court said that the rule authorizing the creditor to apply a payment to either of two debts at her option "is subject to the exception that, if only one of the debts was due at the time of the payment of the $18,386.03, or any part thereof, it was the duty of Mrs. Anspacher to apply its payment to the due debt. Bacon v. Brown, 1 Bibb, 334, 4 Am. Dec. 640."
8-14. A payment of the proceeds from the sale of mortgaged property should be applied to instalments due rather than to those not yet due. City of Louisa v. Horton, 263 Ky 739, 93 SW2d 620; Cain v. Vogt, 138 Iowa 631, 116 NW 786; International Harvester Co. v. Holmes, 165 Wis 506, 162 NW 925. In our consideration of this aspect of the case we quote the following:
The rule has been applied when the duty arises in actions at law as well as in suits in equity. Monidah Trust v. Hruze, 62 Mont 444, 205 P 232.
Neal v. Gideon, 157 Kan 1, 138 P2d 419; Importers' & Exporters' Ins. Co. v. Fidelity & Deposit Co., 45 Ariz 237, 42 P2d 409.
The next question is well stated in Standard Surety & Casualty Co. v. United States, 154 F2d 335, 164 ALR 935 (CCA, 10th):
In considering the question the court quoted from London & S.F. Bank v. Parrott, 125 Cal 472, 58 P 164, *443 where it was said, "`The circumstances which are to guide the court may have arisen since the payment was made'". The Federal Court then cited Thompson v. Bank of Buckhead, 47 Ga App 767, 171 SE 465, 466, where it was held that the court should consider circumstances which have arisen since the payment was made as well as those existing at the time in determining what was just and equitable.
The Federal Court then stated its conclusion as follows:
It is also held that
In Importers' & Exporters' Ins. Co. v. Fidelity & Deposit Co., supra, plaintiff brought an action on an indemnity bond. The court said:
Again, in the Restatement of Contracts, we read:
Section 394 does not discuss the problem presented by the particular facts in the pending case. The general rule is stated thus:
The exceptions in section 394 do not cover the facts in the pending case and the general rule therefor applies.
Applying these principles we have first the rule that proceeds from mortgaged property should be applied to the mortgage debt. We next consider the guiding rule requiring search for the implied intention of the parties. The plaintiff's intention was expressly indicated and was also clearly implied. On the contrary, the defendants' intention was to make an unlawful application to the debt of a third party not the creditor holding the security. Under these conditions the court should follow the express or implied intention of the debtor.
15. Again, the rule which directs the court to consider not only the situation existing at the time of the payment but also the situation arising after the payment *446 but before the litigation arose, suggests an application favorable to the plaintiff. The court is to apply the payment as a "just regard to its effect upon the debtor, the creditor and third persons makes it desirable that it should be applied." Here the question in its simplest form is this: Should the payment be applied to the claim of Courtemanche Acceptance Corporation before or after 5 October when the forfeiture was declared? The court should under the authorities cited consider the issue in the light of the facts existing immediately before the forfeiture. Considering them as of that time, the court could know from the undisputed facts that application of the payment to any claim maturing after 5 October would be impossible because after that date plaintiff would have lost all interest in property of great value. Applying the disputed payment, however, to the current obligations which had matured before forfeiture would prevent an abhorred forfeiture and still preserve the rights of the defendants in the security. These and other considerations suggested by the authorities cited dictate that we should hold that the $2250 disputed payment should be applied at least at some time prior to the date of forfeiture. If this is not "justice", we are at a loss to know what is.
16. We conclude that payments derived from the sale of mortgaged property must be applied to the mortgage debt in the absence of agreement to the contrary, and that such funds should be applied to debts due rather than to unmatured claims. This conclusion is strongly fortified when applied to the particular facts of the case at bar. It requires no argument to demonstrate that any mortgagor would intend that his payments be applied so as to keep the mortgage in good standing, and that such payments should not be applied to an instalment not yet due if the result would be to *447 put the mortgagor in default, thereby entitling the mortgagee immediately to seize all of the mortgaged property and foreclose by private sale. The so-called purchase price was $102,177.78, but that sum included an item of $12,142.75, which represented financing charges and prepaid interest. Under the trial court's decision, the $2,250 derived from the sale of the trailer was applied on the last instalment of the mortgage or was applied pro rata on all of the matured instalments. It is impossible to determine which alternative the trial court adopted. Its decision placed the plaintiff in default and entitled the mortgagee to foreclose and sell the property. Furthermore, if the proceeds had proved insufficient to satisfy the unpaid balance, the mortgagee, under the mortgage, could have taken judgment for the balance which would have included interest calculated on the unpaid instalments which would have matured between 6 October 1950, the date of the conversion, and 25 October 1951, the date set for the final payment on the mortgage.
17. Under the evidence in this case, and the facts as determined by the verdict of the jury, we hold that the trial court erred in granting judgment for the defendants notwithstanding the verdict. The credit for the trailer should have been applied on the mortgage when that money was received, or at least at the time when the next instalment became due. Had that been done, the plaintiff would not have been in default on 6 October. The result is that the defendants were guilty of converting the property.
18-20. After granting the judgment n.o.v., the trial court also held that the evidence did not sustain any award of punitive damages. That issue had been raised by the defendants who had moved that in the event that it should be found that the defendants had converted *448 the property the judgment for compensatory and punitive damages be set aside and judgment entered for "general damages alone, to wit, $9,240.69" for the reason that there was no substantial evidence to support the award of punitive damages. If this court were authorized to exercise its common law powers, we would unhesitatingly hold that the award of $35,000 as punitive damages was excessive and it may be that the trial court was unconsciously influenced by the same conviction in its ruling upon the motion for judgment n.o.v. But unless this court is ready to overrule Van Lom v. Schneiderman, 187 Or 89, 210 P2d 461, as applied to punitive damages, we must hold that under the constitution, Article VII, § 3, we are without power to consider whether or not the punitive damages were excessive, and we must uphold the verdict whether deemed excessive or not, unless we find other error authorizing the granting of a new trial. We will not labor the issue here which was discussed pro and con in the Van Lom case. Applying the ruling of that case as law, our only question for determination is whether there was any substantial evidence of malice. The rule in this jurisdiction is well set forth in the ruling of Green v. Leckington, 192 Or 601, 609, 236 P2d 335, where it is said:
*449 Under the ruling of that case we would be authorized to affirm the judgment for compensatory damages and set aside the judgment for punitive damages if we should find that there was no substantial evidence on the latter issue. We are, however, compelled to find that there was evidence from which the jury could, and did, find that the defendants deliberately misapplied his payment of $2,250 to a claim to which it could not lawfully be applied. There is evidence that the defendants' representatives made inconsistent statements concerning the disposition of the $250 commission which was paid on the sale of the trailer. There is evidence relative to the payment of $6,000 made by Mr. Powell to the Acceptance Corporation of 25 August 1950. Plaintiff testified:
There was evidence concerning the agreement whereby Powell would pay $6,000 to the Acceptance Corporation, concerning which the plaintiff testified:
There is evidence that Mr. Hansen for the Acceptance Corporation demanded $3,000 of the plaintiff, who explained that he had no money in the bank at that time. Upon the demand, however, the plaintiff issued a $3,000 check upon Hansen's agreement that he would not cash it until after plaintiff's next payday. There is further evidence that the check was sent through the bank in violation of that agreement. There is also evidence, which is disputed, to the effect that Louis Courtemanche insisted that plaintiff continue trucking for a logger, Welch, when it was apparent that the volume of trucking for Welch was insufficient to make possible plaintiff's payments on the mortgage, when there were other and allegedly better opportunities for the use of the trucks elsewhere. The undisputed evidence is that the trucks were retaken without notice to the plaintiff and without his knowledge. We express no opinion as to whether the defendants were activiated by malice, *451 or whether there was a wilful and wanton disregard of plaintiff's property rights. We say only that the evidence presented an issue for the decision of the jury.
The authorities are adequately reviewed in Perry v. Thomas et al., 197 Or 374, 253 P2d 299. See also McCarthy v. General Electric Co., et al., 151 Or 519, 49 P2d 993; Pelton v. General Motors Acceptance Corporation, 139 Or 198, 7 P2d 263 9 P2d, 128. We hold that there was substantial evidence authorizing the jury in its discretion to award punitive damages.
21-23. We must next consider the defendants' cross appeal from the order denying the defendants' motion for a new trial. A motion for a new trial was properly filed by the defendants, with the request that it be considered, if the court should deny the motions for judgment n.o.v., and for the elimination of punitive damages. Our first inquiry is whether we are authorized to consider the merits of the motion for a new trial. Under ORS 19.010 the right of appeal is given as to an order setting aside a judgment and granting a new trial, and it is not given as to orders denying a motion for new trial. Under that statute we have repeatedly held that no appeal will lie from an order denying a motion for a new trial, but in 1945, new legislation effected a material change in the law. ORS 18.140 incorporates the 1945 amendment and reads in part as follows:
The motion of the defendants for new trial was joined with their motion for judgment n.o.v., pursuant to the provisions of this statute. They could not appeal from the judgment for the plaintiff because it had been set aside. They could not appeal from the judgment n.o.v. for it was in their favor. Under the statute, if a motion for new trial is not joined with the motion for judgment n.o.v., it is waived. The clear intent of the statute is, that if both motions are joined, there is no waiver. The provision of the statute which requires the trial court to consider first the motion for judgment n.o.v. and which provides that if granted, the court shall, nevertheless, rule on the motion for new trial "and assign such reasons therefor as would apply had the motion for judgment notwithstanding the verdict been denied" clearly manifests the legislative intent that if this court reverses the judgment n.o.v., there shall be available to us a record from which we may determine whether there is merit in the errors assigned in the motion for a new trial. The trial court, in an abbreviated manner, complied with the requirement of the statute and held that the motion for a new trial was not well taken "in that such other error as may have occurred during the trial would not in and of itself justify the granting of a new trial." We are of the opinion that the merits of the motion for a new trial are before us for consideration and we hold that under these circumstances the right to appeal from the adverse decision of the trial court on the motion for a new trial is granted by implication. If an appeal *453 could not be taken from the order denying a new trial, there would be no way by which this court could reach prejudicial errors apparent on the face of the record.
24. In the ordinary case, an appellant against whom a verdict and judgment have been taken and whose motion for a new trial has been denied, can appeal from the judgment and may take advantage of errors of law occurring at the trial if he has properly preserved his rights. Not so in the case now under consideration. See discussions: Varley v. Consolidated Timber Co., 172 Or 157, 139 P2d 584; Montgomery Ward & Co. v. Duncan, 311 US 243, 85 L ed 147. The defendants' only opportunity to complain of adverse rulings at the trial was to appeal from the denial of their motion. They may then raise in this court such issues as they have presented in the motion and as they have preserved at the trial.
25. The first assignment of error in the defendants' cross appeal relates to the emotional appeal of the plaintiff in his final argument, but the court properly instructed the jury to disregard the offensive portion thereof and we cannot say that the nature of the argument established that the verdict was the product of passion or prejudice.
26. The second assignment of error complains of the failure of the trial court to give the following requested instruction:
Under the authorities which now have been definitely established despite earlier disagreement the failure to give this instruction on request was error. Wyckoff v. Mutual Life Insurance Co. of New York, 173 Or 592, 147 P2d 227; Ritchie v. Thomas, 190 Or 95, 224 P2d 543; State of Oregon v. Garver, 190 Or 291, 225 P2d 771.
27, 28. The trial court also gave an instruction as follows:
An exception was taken and is preserved in the bill of exceptions, although it is not urged in the respondents' brief. The instruction and the exception are set forth in the printed abstract of record but were perhaps inadvertently not discussed in the respondents' brief on the cross appeal. The instruction given was in direct violation of the ruling of this court in Pelton v. General Motors Acceptance Corporation, 139 Or 198, 207, 7 P2d 263, 9 P2d 128, where the court, upon rehearing, said:
The instruction was prejudicial and erroneous. Under the circumstances of this case, we deemed it proper to invoke Rule 2 of this court which authorizes us to take notice of an error of law apparent on the face of the record, in the interest of justice and fair trial.
The judgment of the trial court is set aside and a new trial granted. | fcf9acfb000e14dbbd662f0d70051028a2400dd7220de2a9fef60e5204038872 | 1954-09-15T00:00:00Z |
c244e753-4ff6-404a-92a0-870e1539b874 | Gordon v. Portland Trust Bank | 201 Or. 648, 271 P.2d 653 | null | oregon | Oregon Supreme Court | Affirmed June 17, 1954.
Irving Rand, of Portland, argued the cause for appellant. With him on the briefs was George W. Mead, of Portland.
H.H. Phillips argued the cause for respondent. On the brief were Phillips, Coughlin, Buell & Phillips, of Portland.
Before LATOURETTE, Chief Justice, and LUSK, TOOZE and PERRY, Justices.
AFFIRMED.
LUSK, J.
This is an action at law brought by Leotta Belle Gordon as executrix under the last will and testament of Albert Leslie Gordon, deceased, to recover the sum of $26,352.75 from the Portland Trust Bank, a banking *649 corporation. Judgment for defendant was entered after a demurrer to the complaint had been sustained. Plaintiff appeals.
As the complaint discloses, the money involved is the proceeds of fifteen policies of insurance upon the life of Albert Leslie Gordon, deceased, which he delivered to the bank pursuant to the terms of an instrument in writing, executed by Gordon as trustor and the bank as trustee. Gordon caused the bank to be designated beneficiary under the insurance policies, and after his death the bank collected the proceeds of the policies, which it claims the right to hold and to distribute in accordance with the provisions of the trust agreement.
It is the theory of the plaintiff that the trust agreement is actually a "testamentary disposition or Last Will and Testament", and that it was revoked by a will executed by Gordon four days later under which Mrs. Gordon has been appointed executrix.
The trust instrument, a copy of which is made an exhibit to the complaint, is dated August 3, 1942. It recites that the parties, Gordon as trustor and the bank as trustee, have agreed that the bank has been designated beneficiary as trustee under the policies of life insurance enumerated in an attached schedule for the uses and purposes thereinafter stated. The bank agreed
Other pertinent provisions follow: After paying the expenses incurred in managing the trust estate and deducting the same from the gross income, the trustee shall distribute the net income of the trust estate in quarterly installments to the trustor's wife, Leotta Belle Gordon, until her death or remarriage, and, upon the happening of either of those events, the trustee shall distribute the corpus equally between the trustor's two daughters, with further provisions for the contingencies of the death of either or both daughters before the death or remarriage of the widow.
The trustee shall not in any event be obliged or required to pay any premium, assessment or other *651 sum that may become due or payable on any of the said policies; and it shall not be obliged to bring suit to collect the principal amount on any of the policies unless properly indemnified, the sole obligation and liability of the trustee being to receive, manage and dispose of such money as may be paid to it under the said policies:
The agreement also contains a section entitled "Open Trust Clause" under which the trustor was authorized to deposit with the trustee securities, personal property and sums of money, and to deed to the trustee real property, which would become part of the trust res, but there is nothing to show that any property of any kind was ever added to the trust res in pursuance of this authority.
The question raised by this appeal is before this court for the first time, though it has been extensively litigated in other jurisdictions and has been the subject of a good deal of discussion by textwriters and commentators. See, e.g., Hanna, "Some Legal Aspects of Life Insurance Trusts" (1930), 78 Univ Pa L Rev 346; 1 Scott, Trusts 345 et seq.; 2 Bogert, Trusts and Trustees §§ 238, 239; Grahame, "The Insurance Trust as Non-testamentary Disposition" (1934), 18 Minn L *652 Rev 391. A brief historical account will aid to an understanding of the problem.
It should be noted that life insurance, and its natural concomitant, the insurance trust, did not become popular in the United States until the latter half of the nineteenth century. At that time the doctrine of the third-party beneficiary had not developed as yet and the status of the beneficiary under an insurance policy was defined in several early cases, notably in Washington Central Bank v. Hume, 128 US 195, 9 S Ct 41, 32 L Ed 370, as follows:
In other words, the beneficiary was held to be the recipient of the benefits of an irrevocable trust. To the same effect see, Mutual Benefit Life Ins. Co. v. Cummings, 66 Or 272, 285, 126 P 982, 133 P 1169, 47 LRA (ns) 252, Ann Cas 1915B 535. Several prior state court decisions in New Jersey, Connecticut and Louisiana had already established the rule that a donee-beneficiary held a vested interest which could not be defeated by the insured, who was the promisee under the insurance contract. These cases are collected and exhaustively analyzed by Professor Vance in his article, "The Beneficiary's Interest in a Life Insurance Policy" (1922), 31 Yale L J 343. The early cases were soon buttressed by many others which followed in quick succession. See cases cited in 4 Cooley, Briefs on Insurance (2d ed) 3755; 3 A & E Enc Law *653 (2d ed) 980. Whether the beneficiary was looked upon as the recipient of a trust, or whether the policy was considered a gift of a chose in action, the important thing in these early cases is that the beneficiary was declared to be the owner. This view is entirely understandable in the light of the provisions of life insurance contracts then written. There were no loan or cash values, no extensive powers of assignment or change of beneficiary.
The older rule which gave a vested interest to the beneficiary does not, of course, square with the modern notions of life policies. In modern times, the real incidents of ownership are indisputably vested in the insured and it was only logical that many courts should take the position that the beneficiary, where he is subject to divestment at the mere whim of the insured, takes only a contingent interest or an expectancy. Thus, today there is considerable authority for the view that the beneficiary gets a vested right only as his expectancy or contingent interest matures on the death of the insured. Grosz v. Grosz, 151 Or 438, 450, 50 P2d 119; Grimm v. Grimm, 26 Cal2d 173, 157 P2d 841; Shay v. Merchants Banking Trust Co., 335 Pa 101, 6 A2d 536; 46 CJS 62-63, Insurance § 1173 (2), notes 15, 16; 27 Am Jur 952, Insurance § 1276. But the courts are by no means in accord on the issue. Many hold that the beneficiary takes a vested interest subject to divestment upon change of beneficiary in accordance with the provisions of the policy. Roberts v. Northwestern Life Nat. Ins. Co., 143 Ga 780, 85 SE 1043; Indiana Nat. Life Ins. Co. v. McGinnis, 180 Ind. 9, 101 NE 289; Metropolitan Life Ins. Co. v. Woolf, 138 NJ Eq 450, 47 A2d 340; Wodell v. John Hancock Mut. Life Ins. Co., 320 Mass 1, 67 NE2d 469. Where this view obtains, there is no problem concerning the testamentary *654 aspect of the transaction, for the vested right of the beneficiary is without doubt a proper subject for a trust. Restatement, Trusts § 57, comment f, p. 178; § 84, comment b; Fidelity Title & Trust Co. v. Graham, 262 Pa 273, 105 A 295.
Under the general view that the beneficiary has no more than an expectancy, it is more difficult to find the necessary res for a present trust. Rather, the transaction appears to be a contract with the trust-beneficiary to create a trust at the insured's death. The courts, however, have not felt constrained to arrive at this conclusion, and the cases are legion which have upheld the usual form of unfunded insurance trust even where the court had previously announced that the beneficiary has no more than a mere expectancy. In some of the earlier cases, the rationale appeared to be that, since a life insurance policy payable to an ordinary third-party beneficiary is not testamentary, then neither is one wherein the third-party beneficiary is also trustee, for in both cases the legal title to the proceeds is in the beneficiary according to the doctrine of the third-party beneficiary as it has developed in the law of contracts. In the insurance trust device, the trustee-beneficiary takes a divided interest in the property, but this is specifically a trust problem and has no bearing on the testamentary character of the device. This view was adopted by the New Jersey court in the well-known case of Bose v. Meury, 112 NJ Eq 62, 163 A 276, and also by the Illinois court in Gurnett v. Mutual Life Ins. Co., 356 Ill 612, 191 NE 250. We observe, therefore, that both under the old view, where the beneficiary is considered the owner, and under the new view where he has only an expectancy, the result is the same, for even in the new view, the third-party beneficiary has a present *655 right to fulfillment of the insurer's promise to pay. There is no inconsistency in this position. A right of revocation of the trust deed in the case of any trust cannot really be distinguished from the power reserved by the insured to change the beneficiary. The extent of control reserved to the donor and the insured is the same in both cases, and the vested interest of the beneficiary of the ordinary trust is not open to question, despite the fact that the donor might revoke the trust at his pleasure. See, Allen v. Hendrick, 104 Or 202, 224, 206 P 733. A close analogy is found in the so-called "Totten" or tentative savings bank trust, under which complete control is likewise reserved by the donor during his lifetime, but the beneficiary is permitted to take the money on his death. See, Matter of Totten, 179 NY 112, 71 NE 748.
This court, having carefully reviewed the cases, is of the opinion that the insurance trust attacked in this case can be sustained without deciding that the beneficiary-trustee has either vested rights or a mere expectancy. We perceive that some courts have taken steps to avoid the pitfalls of this particular aspect of the insurance trust problems. Some have resolved the problem by calling the right of the beneficiary a contingent interest which is something more than a mere expectancy, yet something less than a vested interest. See, e.g., Hirsch v. Auer, 146 NY 13, 40 NE 397; Kerr v. Crane, 212 Mass 224, 98 NE 783. These cases, it should be noted, were decided at a time when the life policies in question had none of the modern features such as cash rights, borrowing, reserves, etc. Our own view is that the ownership of the modern policy is actually divided between the beneficiary and the insured. The various marketing or sales features, such as the loan and cash surrender values, are clearly the *656 property of the insured. On the other hand, the beneficiary is the owner of a promise to pay the proceeds at the death of insured, subject to insured's right of revocation. It seems to us that the right of the beneficiary is actually the primary right under the policy, whereas the insured's rights are secondary and have nothing to do with the basic purpose of life insurance. It has been pointed out that a life policy is an anomalous thing when it is separated from its primary object and obligation, namely, to pay the beneficiary the amount of the policy at the death of the insured. See, Boughton, "Creditors and Surrenders" (1926), 3 Association of Life Insurance Counsel Proceedings 311.
The rule that the beneficiary takes rights of his own rather than those of the settlor-insured was recognized in Bose v. Meury, supra. In answer to the claim that the insurance trust was testamentary, the court said:
Under the above language the trust was sustained. The court also held, and we are in agreement, that actually the beneficiary is the one who declares the trust where he has been named trustee. This view is supported by several other cases. See, Lashley v. Lashley, 212 Ala 255, 102 So 229; Makowiec v. Prudential Life Ins. Co., 83 NH 547, 145 A 269.
*657 It follows from the foregoing analysis of the nature and incidents of an insurance trust that Mr. Gordon intended to, and did, transfer to the bank a present interest in the insurance policies (Allen v. Hendrick, 104 Or 202, 225, 206 P 733), and that the plaintiff's contention that the instrument is testamentary in character, rather than a trust, must fail.
The judgment is affirmed. | 655756a364c8d11a70edc8921b24e8318fc763183749ef7062be6ef8c9108937 | 1954-06-17T00:00:00Z |
9249e897-9856-4f2c-a301-3a47efdcc192 | In Re Corcoran | 201 Or. 371, 270 P.2d 158 | null | oregon | Oregon Supreme Court | 201 Or. 371 (1954)
270 P.2d 158
IN RE: COMPLAINT AS TO THE CONDUCT OF MAURICE C. CORCORAN
Supreme Court of Oregon.
Submitted March 6, 1954.
Defendant reprimanded May 19, 1954.
ROSSMAN, J.
The Board of Governors of the Oregon State Bar has recommended that this court administer a reprimand to the defendant, Maurice C. Corcoran, who became a member of the Oregon Bar in 1934. The recommendation was made after two charges filed against the defendant, each of which accused him of conduct unworthy of an attorney, had been sustained by the Board. One of the charges accused the defendant of neglecting an item of immigration business which was forwarded to him by some California practitioners. The other charge was based upon the fact that after *372 he had undertaken as an attorney to conduct the probate of a decedent's estate, small in amount and simple in nature, he procrastinated, and thereby five years ran before he concluded his undertaking.
The defendant made no effort to justify his derelictions. He voluntarily agreed to repay as soon as he was able the small fee which he had received in the immigration matter. Realizing that his want of attention to the probate matter would cost the estate the annual premiums upon the administrator's bond, the defendant voluntarily made the payments out of his personal funds. Evidently his sense of justice prompted him to do so.
The charges against Mr. Corcoran did not accuse him of deceit, dishonesty, untruthfulness or the misapplication of money. His lack of attention to the business entrusted to him prejudiced his client in the immigration matter and embarrassed the California attorneys who had forwarded it to him. In the estate matter, the defendant's dilatory action cost the estate nothing. It, however, inconvenienced and annoyed the administrator. It subjected the probate court to the trouble of serving upon him notice that he was neglecting his duties.
The defendant, without attempting to justify his action in the immigration matter, stated that while it was pending he was having domestic difficulties and resorted to the use of alcohol. He made, in part, the same explanation concerning the estate matter, but added that after he had once neglected that item he found it impossible to renew his interest in it and attend to its final phases. The record shows that he eventually employed another attorney to prepare and file the final papers. He paid that attorney out of his own pocket.
*373 As we have seen, this case presents no charges of dishonesty, lack of veracity, want of skill or misapplication of money. But the absence of diligence may be as damaging to a client and as hurtful to the profession's prestige as any other inexcusable element of a lawyer's accoutrements. In the estimation of some, dilatoriness characterizes the administration of justice. The high credit to which the profession becomes entitled from the fact that most of its members act with promptness and timely maintain their engagements is cancelled by the ill-chosen conduct of the few who are the laggards. Mr. Corcoran is by no means the only member of the profession who needs to learn the lesson of diligence. When Lincoln was practicing law, he wrote: "The leading rule for the man of every calling is diligence. Leave nothing for tomorrow which can be done today. Never let your correspondence fall behind. Whatever piece of business you have in hand, before stopping, do all the labor pertaining to it which can be done." When the accused discovered that he could not renew his interest in an item of business [the probate matter] which had grown shelf-worn while lingering neglected in his office, he learned a lesson which all need to learn. Evidently he profited from that experience, for he swore that all of his present business is receiving prompt attention.
The defendant is 46 years of age. He is the father of three children. So far as we know, he has never previously been the subject of complaint. After being admitted to the practice of law, he displayed an ambition to win a place in the profession. At the outset he worked for automotive finance companies. Then he joined the Department of Justice in the Immigration Service. After seven and one-half years in that work he engaged in the private practice of the law. His *374 diligent efforts and the practical learning which he acquired while in the government employ should bring him a good reward, but hard-won ground, gained by arduous effort, can be lost in a very short time if the individual tires in the struggle and embraces unworthy habits.
The humiliation which the accused suffered when he was forced to appear, first before the Bar's grievance committee, and next before the Board of Governors, and in each instance lay bare before his fellow practitioners his unlawyerlike conduct was in itself a severe penalty. The recommendation of the Board of Governors that we reprimand Mr. Corcoran is adopted. We shall permit the narrative of his lack of attention to the two above-mentioned items of business and the profession's condemnation of his course serve as the reprimand. | a97e9573f664d62e87c2f8f512172a696749c78d9c6acff919aa709e933afb52 | 1954-05-19T00:00:00Z |
6241b2b2-8854-4f86-8b90-88b126707a38 | Davis v. WOOD ET UX. | 200 Or. 602, 268 P.2d 371 | null | oregon | Oregon Supreme Court | Reversed and remanded March 17, 1954.
*605 O.M. Panner and Charles E. Boardman, of Bend, argued the cause for appellant. With them on the brief were McKay & Panner, of Bend.
Robert H. Foley, of Bend, argued the cause for respondents. With him on the brief were De Armond, Goodrich, Foley and Gray, of Bend.
REVERSED AND REMANDED.
BRAND, J.
This is a suit for a declaratory judgment and for additional affirmative relief. The plaintiff who purchased personal property under a conditional sales contract contends that the seller-defendants wrongfully declared a forfeiture and converted the property to their own use. The plaintiff seeks a decree determining the amount, if any, which is due to the defendants on the purchase price and declaring that the plaintiff, upon paying such amount, if any, shall be the owner of the property. He seeks restitution of the property or its value, and damages for the withholding thereof. From a decree for the defendants the plaintiff appeals.
*606 On the 18th day of March 1948 plaintiff Davis entered into a contract in writing for the purchase from the defendants Wood of personal property described in Exhibit A attached to the complaint. Under the contract, the making of which is admitted, the defendants agreed to sell to plaintiff all of the personal property, fixtures and equipment in a cafe owned by the defendants in the city of Bend, Oregon, at the agreed price of $5,500. Payment was to be made as follows: $2,500 down and the balance in monthly payments of $75 "in advance of the first day of each month," deferred payments to bear interest at 6 per cent, each monthly payment to include interest. Title was to remain in the sellers until full payment. There were provisions for payment of taxes, insurance, and for the care of the property. Time was declared to be of the essence. All payments were to be made within ten days from the due date, and in the event of failure, the sellers were granted the "option" to "declare" the contract void and keep all payments as rental for the personal property, or sellers could pay any past due insurance premiums and taxes and charge such payments to the buyer. In consideration of such sale of the personal property it was agreed that sellers would give the buyer a five-year lease on the cafe property, which would be evidenced by a separate instrument. In the third "option" given the sellers in event of default by the buyer it was provided that the sellers might transfer payments made on rent of the building and apply them on payments owing on the contract of purchase of the personalty "so as to keep the contract of purchase up to date and leave any default to apply on the lease * * *." Neither the contract nor the personal property and fixtures were to be sold or assigned without *607 the sellers' consent until full payment. The contract also provided as follows:
In addition to other provisions not now material, the contract provided that "the buyer shall install approximately $2500.00 worth of additional personal property and equipment in said restaurant business before he opens the same for business" and it was "expressly agreed that all such additional personal property and fixtures shall be deemed and considered as part of the sellers' property which they are hereby selling under this contract to the buyer, and all of the terms and conditions heretofore mentioned in this contract shall apply to all of such additional property installed by the buyer and all other additions which he may make or install during the term of this contract."
The complaint alleged that the plaintiff performed all of his obligations under the contract and installed "equipment and fixtures and acquired additional personal property of the value of $3700.00 which became subject to the terms of the contract * * *." Plaintiff alleges that he made all payments up to and inclusive of the payment due in October 1951, both principal and interest, and that there was then unpaid upon the full purchase price a balance of principal of $131.32. The reasonable value of the said personal property is alleged to be $8,100. Plaintiff alleges that certain payments were made after they had become delinquent and that defendants had waived strict performance and that they did not reinstate the strict terms of the agreement *608 by notice, but led plaintiff to believe that strict performance would not be required. Plaintiff alleges that on 28 November 1951 defendants "declared the contract null and void and a forfeiture of all payments" without any previous notice of intention so to do, and took possession of the personal property; that plaintiff has demanded possession and is willing to "pay any sum or do any act required of plaintiff under the contract as a condition to the granting of the relief" demanded. Plaintiff then tendered $250 which is alleged to be more than due. Plaintiff alleges that defendants declared a forfeiture for failure of plaintiff to pay the sum of $75 due in November 1951 and asserted no other ground and should be estopped to assert any other ground. Plaintiff further alleges that simultaneously with the taking of the other property, defendants converted a stock of food belonging to plaintiff and of the value of $550. Plaintiff waives title to the same and asks that the value of the food converted be allowed as a credit against any sum found to have been due. Plaintiff claims damage of $100 a month for such time as the property is withheld and prays also for a declaration that plaintiff is the owner of the personal property covered by the contract and for an order granting restitution of the same or its value upon payment of any balance found due.
The answer consisted of a general denial except as to the allegations of the complaint which were specifically admitted. They admit the making of the conditional sales contract. They then set forth verbatim the lease of the restaurant building, which was executed simultaneously with the conditional sales contract on 18 March 1948. The making of the lease was admitted by the plaintiff. The term of the lease was five years from 1 April 1948 to 31 March 1953. The lease covered *609 the premises on which property covered by the contract was situated. The rental for the full term of five years was stipulated to be $7,500, to be paid as follows:
There is no express provision in the lease as to the amount of the monthly rental, but we may guess that it was intended to be one-sixtieth of $7,500, or $125 per month. The lease further provided:
In addition to other provisions commonly found in leases, we quote the following:
The answer alleged that the plaintiff defaulted in the payments due, both upon the lease and upon the contract, and that the defendants caused notice to be given to the plaintiff of his defaults and notified him that unless such defaults were "taken care of immediately defendants would take necessary steps to protect their interest." It is further alleged that on or about the 6th day of December 1951 the "plaintiff surrendered possession of said property covered by said conditional sales contract." It is alleged that the premises were "in terrible condition." It is further alleged that:
Finally it is alleged:
The prayer of the answer is that the plaintiff be declared obligated "to pay the balance due under said lease-contract" and that the court declare a forfeiture of the conditional sales contract, quiet the title of the defendants to the property described therein, and award $500 damages to defendants. The plaintiff admits that he was in default upon the contract and upon the lease; admits the giving of the notice of 21 November 1951, but denies any indebtedness to the defendants and denies that he surrendered possession of the personal property to the defendants. The reply affirmatively alleges that in December 1951 the lease was terminated, at which time one month's rental of $125 was due and delinquent, "which sum was tendered to the defendants prior to the bringing of this suit."
The reply continues:
The plaintiff offers to pay any sum which the court may find due as a condition to the relief prayed for in the complaint. It is further alleged:
Pursuant to the order of the court, dated 5 January 1953, plaintiff filed a supplemental complaint alleging damage in the sum of $1,200 by reason of the continued wrongful withholding of the property. The Abstract of Record states that the case was tried as a suit. On the 16th day of April 1953 the court entered a declaratory judgment reciting that the parties had stipulated that the case be tried by the court without a jury "whether it be found a suit in equity or an action at law" and that it was further stipulated that "rules should be applied as in a case in equity * * *." The court then declared that the plaintiff forfeited all right in the personal property on or about 6 December 1951 and that the forfeiture was accompanied by a surrender of possession thereof. The court further found that the defendants took possession of a stock of merchandise and supplies belonging to the plaintiff and were obligated to pay to the plaintiff the reasonable value thereof. The court then said
The court further found that the lease was forfeited, terminated and surrendered on 6 December 1951, at which time rental was owing in the amount of $250.00. It was further held that the $250 credit given to the plaintiff on account of merchandise taken by the defendants should be set off against the accrued rent of $250. The court held that neither party was entitled to recover anything from the other but that the plaintiff was entitled to have refunded to him the sum of $250 which he had tendered and which had been filed with the county clerk.
1. The plaintiff sought the relief of equity, both before the trial court and upon appeal. At the trial below, counsel for defendants took the position that the plaintiff had an adequate remedy at law and therefore that the proceeding was not equitable in nature. Reference to the defendants' answer, however, shows that the prayer was "for a decree declaring the plaintiff obligated to pay the balance due under said lease-contract, declaring a forfeiture of said conditional sales contract and quieting the title to the property described therein in the defendants" as well as for damages. The answer indicates that the defendants sought the aid of equity to effectuate a forfeiture and that they were not merely seeking a declaration that they had previously by independent action caused a forfeiture of the personal property. The trial court held that the proceedings were equitable in nature and we agree. Endicott v. Digerness, 103 Or 555, 205 P 975. From the evidence *614 we find that the lease and the contract were executed on the same day and constituted parts of a single transaction. The agreed purchase price for the personal property, fixtures and equipment, originally covered by the conditional sales contract, was $5,500, on which the plaintiff had made a down payment of $2,500, and by monthly payments had reduced the balance owing in November 1951 to $131.32. The rent required by the lease was also paid up to and including October 1951. The lease was terminated in December 1951. The present position of the defendant-respondents is clear.
We quote from their brief:
Thus, notwithstanding the prayer of the answer, they seek to return to the position taken before suit was filed.
On 6 December 1951, one month's rent of $125 was delinquent, as well as one instalment on the personal property. On 1 November 1951 the lease would have had 17 months to run if not terminated. During the 43 months from the execution of the contract and lease, agreements were substantially carried out, the relations of the parties were friendly, and no protest had been made by the defendants. The sole apparent exception appears to be some default in the payment of taxes and insurance plus an indefinite claim that some of the personal property was not kept in good condition. The amount of such defaults and the time as of which they occurred is not made clear.
2, 3. On six occasions during this period, payments were made after the expiration of the period of grace and between the 12th and 15th days of the month in *615 which the payments were due. The evidence is not sufficient to establish any action or indulgence by the vendors which extended the time of payment or lulled the plaintiff into a false sense of security. We find no intentional relinquishment of a known right and no estoppel as the result of the slight delays in the making of the six payments. Samuels v. Mack-International Etc. Corp., 128 Or 600, 275 P 596. The contract contained a time-essence clause, but it did not provide for an automatic forfeiture. In event of default, the vendors had three rights specified in the contract from which to choose. They might declare the contract void and take the property. In the event of default in payment of insurance and taxes they could pay the same and charge the amount to the buyer; or they might transfer payments made on the lease to cover the delinquency of the conditional sales contract "so as to keep the contract of purchase up to date". The options which are commonly vested in a conditional vendor are enumerated and discussed in Endicott v. Digerness, supra, and in the cases therein cited. Since any right of forfeiture was dependent upon a choice of remedy plus action indicating that choice, it follows that the vendors could not declare a forfeiture without first giving reasonable notice, even if there had been no waiver of the time-essence clause. Epplett v. Empire Investment Co., Inc., 99 Or 533, 541, 194 P 461, 700.
4, 5. In Grider v. Turnbow, 162 Or 622, 641, 94 P2d 285, the court said:
The last-cited cases involved the rights of vendor and purchaser. But in Geroy v. Upper and Knight v. Barry, 182 Or 535, 187 P2d 662, this court applied the rule requiring reasonable notice to cases of forfeiture under conditional sales contracts. See also Zumstein v. Stockton, 57 Or Ad Sheets 9, p 541, 264 P2d 455. It appears therefore, that the defendants could not exercise any legal right to forfeit the plaintiff's interest in the property covered by the conditional sales contract without complying with two conditions; first, that they give reasonable notice of intention to forfeit, and second, that they must declare in some unequivocal manner the exercise of the right to forfeit. Forfeitures are regarded with judicial hostility and where a party insists upon a forfeiture he must establish his right by clear and convincing proof. Johnson v. Feskins, 146 Or 657, 31 P2d 667.
6. In defendants' brief it is said that they "do not quarrel with the law set forth in the cases cited by the Appellant under said points and authorities No. 3, 4 and 5." Point 5 of the plaintiff's brief to which the defendants referred reads as follows:
*617 The proposition thus stated is supported by the cases cited thereunder, namely: Epplett v. Empire Investment Co.; Grider v. Turnbow; Geroy v. Upper; all supra; and 47 Am Jur, Sales, § 899. The entire matter of the duty of a vendor to give reasonable notice before forfeiture, even when there has been no waiver or estoppel, is discussed in Zumstein v. Stockton, supra. It will not be repeated here. It must be noted that the contract in the case at bar did not provide for automatic forfeiture without notice.
7, 8. The defendants contend that the plaintiff evidenced his intention "to go no further under his contract and to surrender his interest therein to the Defendants", and that he thereby abandoned the property. Of course, if there was an abandonment of the personal property, that would be a complete defense to the plaintiff's suit. To require a notice of intention to forfeit or unequivocal acts forfeiting, after an abandonment, would be to require an idle ceremony. Anderson v. Hurlburt, 109 Or 284, 219 P 1092. But a surrender of possession cannot be said, as a matter of law, and in all cases, to be inconsistent with the retention by the buyer of some interest in the contract or the property involved, especially where it is surrendered to one having a right to a possessory lien.
We will now consider whether there was an abandonment of the personal property, and if there was not, then whether reasonable notice of intent to forfeit plus appropriate action indicating a forfeiture, was taken. The plaintiff testified that on 18 November the defendant Earl Wood asked plaintiff for a check, and plaintiff told him he would have it in a few days, and that the defendant said "O.K." and walked out. The defendant testified that he tried to collect the rent before *618 the 10th of November but failed to find the plaintiff. This is immaterial because the period of grace had not then expired. The defendant then went hunting and did not return until 18 November when the following conversation took place: The defendant testified that he told the plaintiff that he would have to have the money and that he made no agreement for extension of time. On 18 November the plaintiff closed the cafe. He testified:
The attorney for the defendants acting as their representative wrote a letter bearing date of 21 November, to the plaintiff, from which we quote:
The plaintiff admitted receiving the letter "about a week or so later." He testified that his next conversation with the defendant Earl Wood occurred a week or 10 days after the 18th and in the cafe. We think the conversation in question occurred on December 6. We quote from plaintiff's testimony:
Counsel for the defendant objected to the last-quoted question and answer on the ground "that it affirmatively appears by admission in the pleadings that he received the notice on November 21, 1951." This allegation was not affirmatively admitted but it is true that the plaintiff did not in his reply deny the same. By failing to deny, he admitted that on the 21st day of November defendants caused notice to be given. However, as we shall show, the only notice given did not constitute any effective notice of forfeiture.
The plaintiff left the keys to the restaurant in the defendant's hotel on the 5th of December, and stated to the defendant Vanilliea Wood, "You might want to get in. I can't do anything with it", which was all of the conversation at that time.
9. In determining the legal effect of the various dealings with the personal property covered by the contract, it must be remembered that the parties were also dealing with the leased premises. The lease authorized defendants to repossess without notice or demand in event of default, and provided that no waiver should operate as a bar to forfeiture. The answer alleged default in rent payment and the defendants' brief *620 states that on December 6 they "took possession of the premises and property as their own." The evidence of the defendant establishes that he told plaintiff on December 6 that he had taken the lease over and that he refused to let the plaintiff sell anything. The plaintiff's reply alleges that "in December of 1951, defendants elected to and did declare the lease terminated, as was their right to do." (Italics ours.) Thus the plaintiff acquiesced in the termination of the lease. We hold that it was, in legal effect, terminated on 6 December. That being true, the defendants can claim no rent for the balance of the agreed term.
It is by no means clear that either party considered that the plaintiff's rights under the conditional sales contract had been forfeited, although the defendants now claim in their brief that they took the property as their own. We have said that the lease and contract constitute one transaction. Under the contract, defendants had an option to declare a forfeiture for default, but under the lease it was provided that the personal property covered by the contract should remain in the restaurant "as security to the lessors that the lessee will continue paying the full five years rental * * *", and it was provided that the lessors should have a lien on the personalty for any unpaid rental and might foreclose the same.
10-12. In November one instalment of rent had become delinquent when the plaintiff on 5 December turned the keys over to Mrs. Vanilliea Wood. He certainly did not unequivocally abandon the personal property. The defendants' answer does not allege abandonment, but only that the plaintiff surrendered possession of the personal property. The answer does ineptly allege that "plaintiff is indebted to them for the balance of the rental due under said lease, as well *621 as a forfeiture of said conditional sales contract and quieting the title to the property described therein in defendants." The testimony of the defendants is still more ambiguous. Concerning the personal property the defendant Earl Wood testified as follows:
Again he testified:
At that time the defendant Earl Wood obviously considered that he held the personal property as security *622 for indebtedness on the lease. The fact that the delivery of the keys and the taking of the possession of the premises amounted to a surrender and termination of the lease does not establish any intentional abandonment of the personalty by the plaintiff, or an intentional forfeiture of it by act of the defendants, in view of the record. The prayer of the answer confirms this opinion. The evidence indicates that at the time of a tender later made by the plaintiff, the defendants considered that they were entitled to some $2,000. This was apparently on the theory that they had a right to collect the rental for the balance of the term of the lease. In this they were in error since they had terminated the lease as was their right.
We are also of the opinion that the evidence is insufficient to show any legally effective act of the defendants operating as a forfeiture of the personalty. Since the defendants had several different options from which to choose in the event of a default on the contract, we hold that the statement in the letter dated November 21 to the effect that the defendants "intend to take whatever steps are necessary to protect their interests" is not reasonable or any notice of intent to declare a forfeiture of the personal property on which there was then a balance of less than $200 on the total contract price of $5,500. Plaintiff acquiesced in the termination of the lease, but he has consistently asserted his right to the personal property. When for any reason equity has acquired jurisdiction to pass upon the issue, its attitude concerning forfeitures after substantially all of the contract price has been paid by the conditional buyer, is well stated in J.D. Pittman Tractor Co. v. Bolton, 238 Ala 300, 191 So 360, as follows:
And see Barton v. W.O. Broyles Stove & Furniture Co., 212 Ala 658, 103 So 854.
13, 14. There is another circumstance which bears upon the rights of the parties and upon the type of relief which should be given. We have referred to the provision of the conditional sales contract which required the plaintiff to install approximately $2,500 of additional personal property and equipment and which provided that such property should be deemed a part of the sellers' property and be subject to the provisions of the contract, because "the same will be more or less mixed and merged with the personal property which the sellers are hereby selling to the buyer * * *." It is one thing for the courts to recognize or enforce a strict forfeiture of the interests of a buyer in property which the seller owned and to which he retains title. It is quite another matter when a court is asked to forfeit property which never did belong to the conditional vendor. The plaintiff testified without contradiction that he did install additional property of a value considerably in excess of $2,500. We agree that the additional property purchased and installed by the plaintiff became security for any sum which may be found to be *624 due to the defendants, but we hold that it did not become the property of the vendors when it was first purchased and installed. The following cases indicate that an agreement, in form a conditional sales contract, should be treated in equity as a chattel mortgage when the purpose of the transaction is to give to the person named as the conditional seller, security in property which he never owned and therefore could not have sold. Bell v. Hanover Fire Ins. Co., 107 Or 513, 214 P 340, 215 P 171; Kliks v. Courtemanche, 150 Or 332, 43 P2d 913. In Borengasser v. Chatwell, 207 Ark 608, 182 SW2d 389, the vendor sold the assets of a business, retaining title until the full purchase price should be paid. The contract provided:
On default of the buyer the assignee of the seller brought action to establish and enforce a vendor's lien on all of the assets, including the after-acquired property. The Supreme Court held that the sellers were not entitled to a declaration of a vendor's lien under Section 11422 of Pope's Digest and that the statute contemplated that one must be the vendor of the chattels if he is to have the benefit of a vendor's lien. The court then said:
The principle applied in that case is applicable here.
Upon consideration of all of the evidence, the lease and the contract, and in view of the confusion of the after-acquired goods with the goods covered by the contract, we hold that this case must be remanded to the circuit court sitting in equity. That court should determine the unpaid balance owing on the conditional sales contract, plus the amount of rental which was in arrears on 6 December 1951, plus the amount of damage, if any, to the leased premises as of the same date if caused by any violation of the terms of the lease, plus the amount of any taxes or insurance payments as to which the plaintiff was then in default. The court should then determine the value of the merchandise which was seized by the defendants and which was not covered by the contract, to which amount should be added the sum of $250 which was tendered by the plaintiff and deposited with the county clerk to cover *626 any amount owing on the conditional sales contract. These two items should be set off as against the amount found owing to the defendants as above outlined. The defendants are not entitled to hold any of the personal property as security for any rental except such as was due on the date that the lease was cancelled and possession of the property taken by the defendants. If on a balancing of these claims the trial court shall find that the plaintiff has paid the unpaid balance owing on the contract, and that there was no money owing from the plaintiff to the defendants on 6 December 1951, the plaintiff shall be declared to be the owner of the personal property and entitled to its possession.
If, treating the contract and lease as one transaction, the court shall find that the amount owing the defendants exceeds the credits to which the plaintiff is entitled, then the defendants shall be entitled to a lien on the personalty to secure the amount owing, and if the plaintiff shall fail to pay such amount, the lien may be foreclosed.
From the decree of the court it appears that the value of the merchandise taken by the defendants was fixed at $250, though the court stated that it was "impossible for the Court to determine the value thereof * * *." In this the court erred. If the amount cannot be determined by the evidence taken or to be taken, then the court should credit plaintiff only with the amount admitted by the defendants to be the value of the merchandise.
We are reluctant to send an equity suit back for further trial, but in view of the confused state of the record and of the possibility that the defendants may be entitled to foreclosure in equity of the lien on the personal property, we find no other course open to us. The conclusion at which we have arrived will eliminate *627 the extreme hardship to the plaintiff which would follow from the decree of forfeiture declared by the trial court, and at the same time will protect any legitimate interests of the defendants.
The claim of damages for withholding the personal property, asserted in plaintiff's supplmental complaint, cannot be determined upon this record. We fully appreciate that issues may arise relative to the removability of some of the equipment installed by the plaintiff in the premises owned by the defendants. Under the testimony now before us, the value of the leasehold, and especially the value of the equipment therein, will vary by some thousands of dollars, depending upon whether the lease and the equipment are disposed of together or separately. But these questions cannot be avoided unless, of course, the parties cooperate to avoid mutual loss by leasing the premises and selling the personalty to the same party.
The decree is reversed. The cause is remanded to the circuit court for further proceedings conformable to this opinion and for the taking of additional testimony as may be deemed necessary. The plaintiff is entitled to costs. | 2ab0dd5500145410b7bcea63fa6eebffd33afe0e1258a419235d5e099c4d1238 | 1954-03-17T00:00:00Z |
065c5528-9546-47c5-8036-d915853093fa | State of Oregon v. Kuhnhausen | 201 Or. 478, 272 P.2d 225 | null | oregon | Oregon Supreme Court | Argued on rehearing March 31, 1954.
Reversed February 10, 1954.
Former opinion withdrawn, conviction affirmed June 17, 1954.
*486 Edward J. Georgeff and Rivon E. Jones, of Portland, argued the cause and filed a brief for appellant.
Winston L. Bradshaw, District Attorney, of Oregon City, argued the cause for respondent. With him on the brief were Robert Y. Thornton, Attorney General, of Salem, and Walter J. Apley and Howard J. Blanding, Deputy District Attorneys, of Oregon City.
REVERSED.
TOOZE, J.
The defendant, Bonnie Lee Kuhnhausen, appeals from a judgment of conviction for the crime of murder in the second degree. She was sentenced to life imprisonment.
On January 18, 1952, defendant and one Elmer Dorsey Williams were arrested in Portland, Oregon, and placed in jail as suspects in the beating two days earlier of one Jalmar Tarkia. Tarkia died on January 19, 1952, as the direct result of the beating which he had received. The State contended that the motive for such beating was robbery.
Upon this appeal defendant alleges four assignments of error as follows:
1, 2. In view of the disposition we are compelled, under the law, to make of this case, it is unnecessary for us to discuss the evidence introduced upon the trial of defendant, or to otherwise outline the facts of the case. It is sufficient to state that a careful review of the trial record convinces us that there was substantial evidence to support the verdict, as well as substantial evidence from which the jury might have found the defendant "not guilty". This would dispose of defendant's assignment of error numbered "4", were that question properly before us. Moreover, if we were required to consider defendant's assignment of error numbered "3", it would be our conclusion that *488 the assignment is without merit. State v. Long, 195 Or 81, 124, 244 P2d 1033.
It is upon assignments of error numbered "1" and "2", and particularly upon assignment of error numbered "1", that we must base our decision. That requires a discussion of the record made prior to trial of the case.
On January 24, 1952, the grand jury for Clackamas county returned an indictment against Williams and defendant, jointly accusing them of the crime of murder in the first degree. On February 4, 1952, defendant, upon arraignment, pleaded "not guilty" to said indictment. On behalf of her codefendant Williams, a demurrer to the indictment was filed, it being contended that the indictment did not conform to the requirements of ch 7 of title 26, OCLA (ORS 132.510, et seq.). Under date of February 13, 1952, the demurrer was sustained, and in its order sustaining the demurrer the trial court directed that the indictment as to Williams be resubmitted to the grand jury pursuant to the provisions of §§ 26-826 and 26-827, OC LA (ORS 135.530 and 135.540). Thereafter, on February 14, 1952, the district attorney for Clackamas county moved the court for an order resubmitting the indictment to the grand jury as to the defendant Kuhnhausen, and on February 19, 1952, the trial court entered an order so resubmitting the indictment and further ordering "that pending action by said grand jury, that the defendant, Bonnie Lee Kuhnhausen, be held in custody without bail."
On February 20, 1952, the grand jury returned an indictment against Williams and defendant, jointly charging them with the crime of murder in the first degree. To this indictment, defendant entered a plea *489 of "not guilty" on February 25, 1952. On March 14, 1952, defendant filed her motion for a separate trial pursuant to the provisions of § 26-923, OCLA (ORS 136.060), and on the same day the court entered an order "that the defendant, Bonnie Lee Kuhnhausen, be tried separately from defendant, Elmer Dorsey Williams, upon a date to be set by the Court."
Under the statutes of this state, there are four regular terms of the circuit court for Clackamas county each year, each term being for a period of three months. The first term in each year commences on the first Tuesday in January and continues until the first Tuesday in April; the April term continues until the first Tuesday in July; the July term, until the first Tuesday in October; and the October term, until the first Tuesday in January following. § 93-254, OCLA (ORS 4.150).
On March 31, 1952, the trial court entered a general order continuing all cases not tried during the first term of court in 1952 over to the following term on the ground, as stated in the order, "that the Court did not have time to dispose of such cases during the first term".
The district attorney elected to try the case against the defendant Williams first. This trial commenced on April 20, 1952, resulting in a verdict of guilty of murder in the second degree. A special jury panel was drawn for the purposes of the Williams trial.
On March 4, 1952, and again on May 9, 1952, by letters adressed to the circuit court, the district attorney requested that a trial date be set for the trial of defendant. His applications were timely and in accordance with the practice in such cases.
On June 30, 1952, the trial court entered another general order continuing all criminal cases not tried *490 during the second term of court in 1952 over to the following term on the ground that the court did not have time to dispose of such cases during the second term.
On July 30, 1952, defendant filed a motion, supported by affidavit, to dismiss the case against her on the grounds "that the same was not tried in the next term of Court from when the cause commenced, and that there has been a failure of prosecution".
On said July 30, a hearing was held by the court upon such motion, the defendant being personally present at such hearing and represented by counsel. The State appeared by the district attorney. Testimony of the county clerk and some exhibits were admitted in evidence to support the continuance of the trial of defendant over the second term of court. The court denied the motion.
The case was set for trial for August 18, 1952, some six months after defendant had entered her plea of "not guilty" to the indictment. In the meantime, defendant remained in jail, the charge against her being a nonbailable offense.
On August 18, and before a jury had been empaneled to try the case, defendant renewed her motion for a dismissal of the indictment against her on the same grounds urged in her motion of July 30. Her motion was denied, and the trial proceeded to verdict and judgment. Defendant duly excepted to the several rulings of the court.
The record discloses that during the January and April terms of court, only one criminal case was tried to a jury. Some 33 criminal cases were disposed of upon pleas of guilty, and without jury trial. A large number of civil cases were tried to juries. On the first of May, 1952, the trial court set a number of civil cases *491 for trial during the months of May and June. No more cases were set for trial, neither civil nor criminal, until the first of July, 1952.
Upon the hearing on defendant's motion of July 30, the trial court made the following statement for the record:
The record shows that the cases referred to by the court as having been set for trial were all civil cases.
It will be noted that after completion of the Williams trial more than two months remained of the April (or second) term of court. Nearly two months of the term remained after the district attorney had made his request of May 9 for a trial date.
Article 1, § 10, Oregon Const., provides:
3. A defendant in a criminal action is, by this constitutional provision, guaranteed a speedy trial. State *492 v. Harris, 101 Or 410, 415, 200 P 926; State v. Breaw, 45 Or 586, 587, 78 P 896.
4. From the very earliest times the right of an accused person to a speedy trial has been recognized. In the United States it is guaranteed by constitutional and statutory provisions. It is a fundamental right, and one not subject to judicial discretion. It extends to all persons accused of crime, to the guilty as well as to the innocent.
5, 6. There is no general principle that fixes the exact time within which a trial must be had to satisfy the requirement of a speedy trial. The term "speedy", or its equivalent, as employed in constitutional provisions guaranteeing a speedy trial to accused persons, being a term of indeterminate meaning, permits legislative definition to some extent. Statutes providing for a discharge of accused unless trial is had within a stated time after indictment, or which require an indictment or information within a stated time, are enacted for the purpose of enforcing the constitutional right, and they constitute a legislative construction or definition of the constitutional provision and must be construed fairly to the accomplishment of that end. 22 CJS 715, Criminal Law, § 467(3).
Section 26-2002, OCLA (ORS 134.120) has for its sole purpose the enforcement of the right of an accused person to a speedy trial as guaranteed by § 10, Art 1, Oregon Const., supra. The statute was adopted by the legislature of this state in 1864 and has not been amended or altered in any respect since that time. It provides:
It is interesting to note that the foregoing statute is almost identical in terms with one adopted by the Oregon territorial legislature. Section 29 of ch XXXVI, Statutes of Oregon Territory, 1854. Our constitution 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 Art. XVIII, of our original constitution, provided:
No attempt was made to legislate generally for the state until the legislative session of 1864, when a complete new code of laws was adopted. § 26-2002, OCLA, supra, was a part of that code.
7. This statute constitutes the legislative construction and definition of the constitutional provision (§ 10, Art 1, Oregon Const., supra), and, to all intents and purposes, having been adopted contemporaneously with the adoption of the constitution, it 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.
8, 9. The command of the statute is mandatory. If a defendant be not brought to trial at the next term of court in which the indictment is triable, after it is found, no good cause to the contrary being shown, the court must order the indictment to be dismissed; it has no discretion in the matter. In view of the constitutional provision and the terms of the statute, the duty *494 of the court to dismiss in such circumstances becomes, in effect, a constitutional duty. Where defendant's right to a dismissal becomes fixed, the court has no authority or jurisdiction to proceed further with the prosecution. Any action by the court thereafter in furtherance of prosecution on that indictment would be a nullity.
10. We have held that the constitutional and statutory provisions do not necessarily require the trial of an accused person within the term of court in which the indictment is returned. State v. Breaw, supra. But the trial must be held during the following term, unless good cause to the contrary be shown, or unless the trial is postponed upon the application of the accused or by his consent.
11, 12. Under the mandatory provisions of the statute, the defendant should have been tried at the latest during the April term of the court. The defendant did not apply for a continuance of the case over that term and into the July term; neither did she consent to a continuance beyond the April term. When "consent" of a defendant to a continuance for trial is claimed, an express consent, as distinguished from an implied consent, must be shown. In State v. Chadwick, 150 Or 645, 650, 47 P2d 232, we said:
It remains for us to discuss what constitutes "good cause" for a continuance of a criminal trial beyond the court term next following the term in which the indictment is returned.
As we have before noted, the only cause assigned by the trial court for continuing defendant's trial into the July term of court was that he had civil cases set for trial, and in order to try defendant before August 18, it would have been necessary to take one or more of the civil cases off the trial docket.
13. Ordinarily, this court will not review the findings of the circuit court as to whether good cause has or has not been shown, but where the record shows the cause that existed why the case should be continued, then this court will consider whether the reason found by the court for the continuance is sufficient upon which to base an order denying dismissal of the indictment. State v. Chadwick, supra; State v. Barrett, supra; State v. Bateham, 94 Or 524, 186 P 5. In State v. Goldstein et al., 111 Or 221, 224, 224 P 1087, this court had before it for consideration a general order of the trial court continuing all cases not tried and disposed of until the next regular term of court, "because of the lack of time on the part of the court to hear and dispose of the same * * *." As to this order, we said:
In the instant case the reason for the continuance as well as for the denial of defendant's motion to dismiss the indictment, as above stated, clearly appears from the record made by the court at its own instance upon hearing of the motion to dismiss.
Did the reason assigned by the court for its action constitute "good cause" for the continuance?
14, 15. We find that it did not. By virtue of the constitutional provision guaranteeing a speedy trial to an accused person, and the statutory definition and construction of such constitutional guaranty, criminal trials have a preference over the trial of civil cases. The fact that a number of civil cases has been set for trial is no valid excuse for the failure to set promptly for trial a criminal case that is at issue, if necessary to comply with the mandatory provisions of the statute. In order to afford the defendant a speedy trial in this case, and to thus preserve and protect her constitutional right, it was the duty of the court, if necessary, to take one or more of the civil cases off the docket.
Although the constitutional provision itself makes no distinction between civil and criminal cases as to the right of a speedy trial, nevertheless, by virtue of the provisions of § 26-2002, OCLA (ORS 134.120), supra, a clear distinction exists, and by reason thereof, the trial of a criminal case does have the preference over the trial of a civil case, insofar as it is necessary to comply with the provisions of the statute. Our code contains no statute similar to § 26-2002, OCLA (ORS 134.120), supra, as to civil cases in general.
We are not unmindful of what this court said in State v. Lee, 110 Or 682, 684, 224 P 627. There the court *497 had for consideration a general order for the continuance of all cases into the next term of court because of lack of time on the part of the court to hear and dispose of them. As to this order, we said:
Then, after quoting Art 1, § 10, Oregon Const., supra, the court stated:
We acknowledge the fact that the unequivocal statement that "The law does not give criminal cases the `right of way'", and the further statement that "the right guaranteed by our fundamental law for a `speedy' hearing applies alike to civil and criminal causes", might well be misunderstood and create some confusion. It is true that the constitution does not, nor does any statute of this state, expressly provide that the trial of criminal cases shall have precedence over the trial of civil cases, but it is manifest that the effect of the provisions of § 26-2002, OCLA (ORS 134.120), supra, is to give such preference. There is sound reason for this preference. Civil cases usually have to do with problems of money, property, or status, whereas criminal cases involve the personal liberty, freedom, and often, life of the individual. Since Magna Charta the protection of the life, liberty, and freedom of the individual has ever been the primary concern of the English-speaking world, the basis for and substance of the Bill of Rights incorporated into the federal and several state constitutions. It is obvious that if the trial of criminal cases did not take precedence over the *498 trial of civil cases, the fundamental right of an accused person to a speedy trial might, and perhaps would, in many instances be defeated.
In this connection it also is highly significant that, although there is no statute which directly or indirectly gives hearings on criminal appeals a preference over hearings in civil cases in this court, nevertheless, in order to further enforce the constitutional right of an accused person to a speedy trial, we have, by unwritten rule, ever recognized such right of preference.
16-18. In what we have said, we do not wish to be understood as holding that in every case the constitutional right of an accused person to a speedy trial will be satisfied by setting the trial in the next term of court following the term in which the indictment was returned. Wholly apart from the statute, 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. The right is consistent with delays, and, in the final analysis, whether such a speedy trial has been afforded must be determined in the light of the circumstances of each particular case as a matter of judicial discretion. In such cases the provisions of the statute not being in question, the action of the trial court will not be disturbed unless the record clearly discloses an abuse of discretion. In cases involving nonbailable offenses and, particularly, where the defendant himself requests an early trial, delays without good cause should not be countenanced. State v. Clark, 86 Or 464, 470, 168 P 944; 22 CJS 715, Criminal Law, § 467(b), (3); 14 Am Jur 859, Criminal Law, § 135.
*499 It has been suggested that the general order of the court continuing all pending matters, including the trial of criminal cases, over to the following term of court, because of lack of time on the part of the court to hear and dispose of the same, imports absolute verity, and, unless expunged from the record, is binding upon us. In State v. German, 163 Or 642, 645, 98 P2d 6, Mr. Justice BEAN, speaking for the court, said:
In State v. Moltzner, supra, at page 136, the court, speaking through Mr. Justice KELLY, stated:
19. When read in the light of our prior decisions, the holdings in State v. German and State v. Moltzner, with one exception, do not announce any new law in this state. We have consistently held that these orders import verity "in the absence of any showing to the contrary". The addition of the word "absolute" before the word "verity" in State v. German adds nothing to the rule. The statement in State v. Moltzner that "in the absence of any order expunging it, we are bound by it" is not the law of this state and is expressly overruled. If the record in the proceeding itself impeaches the order, this court certainly is not bound by it.
The statement in State v. German that "no direct attack has ever been made against the validity of these orders" manifestly refers to something other than the rule of verity attached thereto. It is elementary that these orders should not be subject to collateral attack.
Furthermore, the concluding paragraph of the opinion in State v. German shows that this court actually *501 examined and passed upon the entire record in the case, and based its ultimate finding of "good cause" for the continuance upon such record. The court said:
20. As to these general orders, it is obvious that they must be deemed to have been entered in each particular case affected thereby, as a part of the record in such case, to all intents and purposes as though a separate entry had actually been made in the case. Otherwise, they could not affect in any way the case in question.
21. The record in a criminal case commences with the return of an indictment and includes each and every step in the proceedings thereafter taken up to and including actual trial and judgment. An order for continuance is an integral and important part of such proceedings, directly affecting the state, as well as the accused; it is a part of the "record".
22, 23. It would seem to require no argument to establish the proposition that a motion to dismiss an indictment for failure to prosecute is a direct attack upon and challenge to the entire record, including an order of continuance. A hearing upon such a motion, and the evidence offered in connection therewith, if any, together with any order entered with respect thereto, also become a part of the record in the case. When we are called upon to examine that record, as we are on an appeal, we view it in its entirety, not in piece-meal. If the record as a whole disputes the facts stated in the order for continuance, that order no *502 longer imports verity and has no binding effect. State v. Chadwick, supra; State v. Lee, supra; State v. Goldstein et al., supra.
In the instant case, and as before noted, the trial court itself offered and received testimony upon the hearing of the motion to dismiss in support of its general order of continuance; in effect, the trial court itself impeached the order in question.
24. Upon the record before the trial court in the instant case, it was its mandatory and constitutional duty to dismiss the indictment against the defendant upon her motion for such dismissal. When all is said and done, the statutory requirement respecting the time an accused person must be brought to trial is a salutary rule adopted in the interests of the public, as well as in the interests of accused persons. It is a rule that must be obeyed.
25. The disposition we are compelled to make of this case renders unnecessary a discussion of defendant's assignment of error numbered "2". However, we do find from a review of our prior decisions that that particular assignment is without merit.
The question of whether defendant has been in jeopardy, in the light of the disposition we must make of the case on this appeal, is not before us for determination and, therefore, upon that matter we express no opinion.
The judgment of the trial court is reversed and this cause remanded with directions to dismiss the indictment and discharge the defendant.
LATOURETTE, C.J., dissenting.
I dissent from the majority opinion remanding the case to the trial court with directions to dismiss the indictment and discharge the defendant. My reason *503 for dissenting is that the orders of the trial court, dated March 31, 1952, and June 30, 1952, continuing all criminal cases to the following term on the grounds that the court did not have time to dispose of such cases during the term, imported absolute verity and were not subject to collateral attack.
It will be remembered that on July 30, defendant filed a motion to dismiss the case against her on the grounds that "the same was not tried in the next term of Court from when the cause commenced, and that there has been a failure of prosecution." Hearing was had upon such motion, evidence was taken, and the court denied the motion. Later, on August 18, the date of the trial, defendant renewed her motion for a dismissal, which was likewise denied.
It will be noted that the record upon which the prevailing opinion bases its decision was made subsequent to the entry of the continuing orders. The continuing orders were never under direct attack. The motions to dismiss the indictment were based on § 26-2002, OCLA (134.120 ORS) which requires an order to dismiss the indictment if the defendant is not brought to trial at the next term of court unless the same is continued for good cause. The continuing orders were brought into the case incidentally and collaterally.
In State v. Moltzner, 140 Or 128, 137, 13 P2d 347, this question was squarely before the court. There the defendant moved to dismiss the indictments on the same ground that was urged in the motion in the instant case. We there said:
In State v. Weitzel, 153 Or 524, 527, 56 P2d 1111, this question was again before us for determination. We there reaffirmed the rule laid down in State v. Moltzner, supra, saying:
In State v. German, 163 Or 642, 645, 98 P2d 6, a motion was made to dismiss an indictment because the case was not brought to trial within the next term of court. There was a general order continuing all cases to the next term of court because of unfinished business, etc. We said:
It appears to be the settled law of this state that a continuing order such as we have in this case imports absolute verity and can only be vacated by a direct attack on the order itself and that a motion to dismiss an indictment because the case was not brought to trial at the subsequent term is not a direct attack on the order of continuance but a collateral attack.
The majority opinion relies principally upon State v. Chadwick, 150 Or 645, 650, 47 P2d 232. This case, as will presently be shown, does not disturb the rule announced in the three cases hereinbefore relied on. It does not appear from that case that any general order of continuance was entered. A motion was filed to dismiss the indictments because the cases were not tried during the next term of court. The trial court, in ruling on that motion, by its order recited: "* * * said indictments was [sic] continued by the tacit consent and acquiescence of both plaintiff and defendant * * *." There was the further recital in such order:
From that order denying defendant's motion to dismiss defendant appealed to this court. In reversing the case we held that on the face of the order entered no express consent of the defendant for continuance *506 was shown and that the cause for not trying the case in the next term of court was not a sufficient cause. The distinction between that case and the three cases relied upon by me is that there a direct attack was made on the order denying dismissal by appeal from the same to this court.
It is therefore clear that since the continuance orders in this case have not been attacked directly, but collaterally, the same are unimpeachable and must be given full faith and credit. For this reason, in my opinion, the defendant is not entitled to have her motion to dismiss sustained.
WARNER and LUSK, JJ., concur in this dissent.
Winston L. Bradshaw, District Attorney for Clackamas County, argued the cause for respondent. With him on the brief was Robert Y. Thornton, Attorney General for the State of Oregon.
Edward J. Georgeff, of Portland, argued the cause for appellant. With him on the brief was Rivon E. Jones, of Portland.
FORMER OPINION WITHDRAWN. CONVICTION AFFIRMED.
BRAND, J.
The respondent State of Oregon has moved for a rehearing. In its supporting brief the state presents for our consideration certain propositions not found in its original brief. We granted the rehearing and have reconsidered the case on the merits. In its original opinion this court found it necessary to consider *507 only the defendant's assignment of error No. 1 which reads as follows:
The decision upon this assignment by a divided court was to the effect that it was the "mandatory and constitutional duty" of the trial court "to dismiss the indictment against the defendant upon her motion for such dismissal." The case is one of profound importance with much to be said upon both sides of the controversy.
We will first direct our consideration to assignment of error No. 1. A bare record of events chronologically arranged will form a convenient basis for consideration of the facts:
*509 The indictment was filed on 24 January. Thereafter a demurrer filed by codefendant Williams was sustained, and the motion for resubmission of the indictment as to the defendant Kuhnhausen was allowed and a new joint indictment was returned on 20 February. The procedure was certainly proper. It is a matter of record and judicial knowledge, and satisfactorily explains about 26 days of the delay. On 4 March the district attorney, by letter, requested that the case of State v. Williams and Kuhnhausen be set for trial. On 14 March the defendant Kuhnhausen moved for a separate trial. If she had not so moved, it is obvious that she would have been tried with her codefendant whose trial took place 20 days after the commencement of the second term of court, the one following the term at which she was indicted. It was her right to make such a motion, and the order directing separate trials was properly made, but that motion and order explains a material portion of the delay. On 31 March, which was the last day of the term in which the indictment was returned, the trial court entered a general order continuing to the next term of court all pending cases. The reason stated in the order was "that the court did not have time to dispose of such cases during the first term". A similar order on similar grounds was made by the court on 30 June, the last day of the second term. Thirty days after the commencement of the third term the defendant filed her motion to dismiss "on the grounds that the same was not tried in the next term of Court from whence the cause was commenced, and that there has been a failure of prosecution." A supporting affidavit recited, among other matters, the motion and order for separate trial and the ensuing trial of the codefendant Williams. It also states that "this Court *510 has judicially determined and disposed of approximate [sic] thirty-three (33) other criminal cases involving felonies which have arisen since the indictment of the above defendant, and that many more other civil cases were likewise judicially disposed of by this Court." In arguing the motion for dismissal, counsel for the defendant said:
Deputy County Clerk Santos testified that since the first of the year the court had been setting cases on an average of two or three months in advance of the trial dates. At the hearing on the motion the court stated for the record:
The motion to dismiss was denied. The case was called for trial on 18 August. The defendant, by her counsel, stated that she was ready for trial, and then repeated her motion to dismiss, which was denied without further evidence or argument. After examination of the jury the defendant renewed her motion to dismiss upon *512 the same grounds as before. The court, in denying the motion, said:
The Oregon constitution provides in general terms:
26. The next section of the Bill of Rights (Art I, § 11) specifically enumerates the "Rights of accused in criminal prosecution:" No mention is made to the right of a speedy trial. That right, insofar as it emanates from the constitution, depends upon the provisions of Article I, section 10, supra. As its terms imply, Article I, section 10 applies to both civil and criminal cases. Hooton v. Jarman Chevrolet Co., 135 Or 269, 293 P 604, 296 P 36; Hough v. Porter, 51 Or 318, 449, 95 P 732, 98 P 1083; State v. Lee, 110 Or 682, 224 P 627.
27. It is, of course, clear to all that the mandate of the constitution must not be violated. The question at issue relates to the meaning and application of the constitutional mandate and the relation of our statutory law thereto.
28. We first consider what is the effect of the constitutional mandate considered without regard to any *513 statutory provisions. We quote with approval from the original opinion in this case:
The statement is in substantial harmony with the holding in Johnston v. Circuit Court, Multnomah County, 140 Or 100, 103, 12 P2d 1027, where it is said:
To the same effect see State v. Lee, supra; State v. Swain, 147 Or 207, 214, 31 P2d 745, 32 P2d 773; State v. Clark, 86 Or 464 at 473, 168 P 944; Pines v. District Court, 233 Iowa 1284, 10 NW 574. The point need not be labored further for the defendant relies upon the same rule in her brief.
In State v. Harris, 101 Or 410, 415, 200 P 926, the court said:
In State v. Breaw, 45 Or 586, 588, 78 P 896, the court describes the constitutional provision as giving *514 "the right of a defendant in a criminal action to a trial as soon after the information or indictment is filed as the prosecution can with reasonable diligence prepare for the trial, and the delays growing out of the established method of procedure will permit * * *." The relevant statute provides:
In our original opinion we were moved by certain language from the decisions of our own and other courts to say that the constitutional requirement that justice shall be administered without delay "permits legislative definition to some extent", and we added that such statutes "constitute a legislative construction or definition of the constitutional provision * * *." (Italics ours.) We then went further and said, "This statute constitutes the legislative construction and definition of the constitutional provision * * *" (emphasis ours), and on this basis we held that the statute must be read into and considered a part of the constitutional guaranty. In support we cited State v. Swain, supra, 147 Or 207, 31 P2d 745, 32 P2d 773. In that case we said of the statute only this:
Courts have repeatedly used similar language. In State v. Clark, supra, 86 Or 464, 168 P 944, we said *515 the statute was enacted "pursuant" to the constitutional provision.
Counsel for the defendant cites State v. Putney, 110 Or 634, 224 P 279, as holding that the legislature may define the constitutional provision "to some extent." The court in that case did not go even so far. It merely said that the statute was enacted "to carry out that constitutional guaranty." 110 Or at 645.
In State v. Chadwick, 150 Or 645, 648, 47 P2d 232, we said that the statute was enacted "in order to carry out this provision of the state constitution." Neither State v. Swain, supra, nor the other cases cited supra go to the extent of saying that the statute must be "considered a part of the constitutional guaranty." Of course, the statute was passed to carry out the requirement of a speedy trial, but that does not necessarily mean that the statute becomes an integral and binding part of the constitution. Speaking of the nature of the constitution, Chief Justice Marshall, with profound wisdom, said:
*516 Constitutions are not adopted to control the rights and procedures of the moment but to establish broad principles of justice and fair play for all time.
29. We hold that extreme caution should be exercised in reading into a constitutional provision which is couched in general terms, the specific and detailed provisions of a statute enacted by the legislature pursuant to the constitutional guaranty.
30, 31. In State ex rel. Ricco v. Biggs, 198 Or. 413, 430, 255 P2d 1055, this court said of the rights established by the constitution:
In our original opinion in the pending case we also said:
The quoted statement clearly demonstrates that the statute in question is not a "definition" of the constitutional provision but was merely passed pursuant to it. If the statute were a definition of the constitutional right, then compliance with the statute would of necessity be compliance with the constitution. Of course, the uniform legislative interpretation or application of indefinite constitutional provisions of long standing is entitled to serious consideration by the courts, though it is not binding upon them. Hawley v. Anderson, *517 99 Or 191, 190 P 1097, 195 P 358; Walker v. Polk County, 110 Or 535, 223 P 741.
In State v. McGowan, 113 Mont 591, 131 P2d 262, the Montana court quoted language from 22 CJS, Criminal Law, § 467, to the effect that statutes passed for the purpose of enforcing the constitutional right constitute a legislative construction or definition of the constitutional provision. The Montana court said:
32. So long as the doctrine of separation of powers remains basic in our system, the ultimate power and duty of the courts to construe the constitution must rest with the courts alone. That power should not be lightly whittled away by any rule which recognizes the power of the legislature to authoritatively construe the constitution. It may be added that if ORS 134.120 is a contemporaneous construction and definition of the constitutional provision, there would be equal reason for holding that two other and different statutes which were also passed in 1864 must also be "considered a part of the constitutional guaranty." We refer to ORS 136.070 and ORS 136.120.
It has been suggested that there is an exception to the general rule in the case of a contemporaneous legislative construction of the constitution. ORS 134.120 is substantially identical to a territorial statute which was in existence when the constitution of Oregon was adopted in 1857. The present statute was enacted in *518 1864. Conceding, for the sake of argument, that the legislature had power to bind this court as to the construction of the constitution, it would necessarily follow that the only constitutional provision which the legislature could "construe and define" would be the constitution which was in force at the time that the statute was enacted. Article VII of the constitution as originally adopted provided that "The circuit court shall be held twice, at least, in each year, in each county organized for judicial purposes * * *." Orig Art VII, § 8, p 238 OCLA. It would seem to follow that if the statute of 1864 construed and defined the constitutional provision for a speedy trial, the result would be that a trial is speedy if brought within one year, because the second term of any year, under the original constitution and decisions of this court, continues until terminated by an affirmative judicial act or by the commencement of a new term. Ex parte Harrell, 57 Or 95, 110 P 493; State v. Ryan, 114 Or 91, 96, 97, 234 P 811; Deering v. Quivey, 26 Or 556, 560, 38 P 710. We hold that the statute requiring dismissal for failure, without good cause, to prosecute at the next term of court after the indictment, is not and cannot be a binding legislative definition of the present constitution as amended in 1910 which contains no provision whatever as to the number of terms which shall be held in any county.
Under statutory provisions, there were twelve counties in Oregon having only two terms; six having four; and one having ten terms a year. The remaining counties had three terms annually. ORS 4.110 to 4.270. If we should hold that the statute is to be deemed a part of the constitutional provision concerning speedy trial, the result would be that in some counties of the state a defendant would be given a speedy trial if *519 tried within one year, while in other counties, notably Multnomah, he would be denied his right to a speedy trial if the cause were not tried within 60 days or less, depending on the time of the month at which the indictment was filed and the time in the second month at which the trial was had. The irony of the situation would be found in the fact that the period within which a defendant could be tried would be the longest in the rural counties where the pressure of business is the least, and the shortest where the docket is most congested. Constitutional provisions do not operate in that manner. The courts are extremely reluctant to hold that constitutional rights have been waived, yet this court had no hesitancy in holding that a defendant who failed to assert his rights under the statute, in the lower court, waived his right to make such a motion. State v. Chapin, 74 Or 346, 144 P 1187; State v. Moss, 92 Or 449, 181 P 347.
In People v. Hartman, 408 Ill 133, 96 NE2d 449, a proceeding was brought under the Illinois Post-Conviction Act (Ill Rev Stats, 1949, ch 38, par 826, et seq). It was the contention of the petitioner that he was entitled to a discharge because of an alleged violation of his constitutional rights in that he was not brought to trial within four months from the date of his commitment. Ill Rev Stats, 1949, ch 38, par 748. The court said:
In its opinion the Supreme Court of Illinois clearly distinguished between the violation of the constitutional right to a speedy trial, on the one hand, and the violation of a statute which was passed for the *520 purpose of implementing constitutional provisions, on the other. The court said:
Speaking of the constitutional provision, the court said:
33. We hold that the first question for determination is whether the constitutional right to a speedy trial was accorded to the defendant. That phrase, as used in constitutions, has received repeated judicial construction. The question is whether the proceedings were free from "vexatious, capricious, and oppressive delays, created by the ministers of justice." State v. Clark, supra, 86 Or 464, 168 P 944. The determination of the issue is for the trial court, in the light of all of the circumstances in the particular case, and in the exercise of judicial discretion.
34. The authorities support our statement in the original opinion here that "Wholly apart from the statute * * * whether such a speedy trial has been afforded must be determined in the light of the circumstances of each particular case as a matter of judicial discretion. * * *" In view of the decisions of this *521 court construing the constitutional requirement of speedy trial and the rule of judicial discretion on the part of the trial court, reversible only for the abuse thereof, we hold that the evidence fails to present any abuse of discretion violative of constitutional right on the part of the trial court. The authorities concerning abuse of discretion as the only ground for reversing the judgment of the trial court will be fully set forth in our consideration of the meaning and effect of the statute ORS 134.120.
Before determining whether we should reverse or affirm the order of the trial court denying the motion to dismiss, we must ascertain the nature of the duty of that court and the function of this court in reviewing such orders under the provisions of the statute ORS 134.120.
In State v. Bateham, 94 Or 524, 186 P 5, this court said:
In State v. Breaw, supra, 45 Or 586, 78 P 896, this court said:
*522 In the early case of State v. O'Neil, 13 Or 183, 185, 9 P 284, this court, by Justice LORD, announced the rule concerning either the granting or refusing of a motion for continuance as follows:
In State v. Van Waters, 36 Wash 358, 78 P 897, 898, the same rule was applied and the court added:
In State v. Barrett et al., 121 Or 57, 59, 254 P 198, this court said:
In Johnston v. Circuit Court, Multnomah County, supra, 140 Or 100, 104, 12 P2d 1027, we said:
*523 In State v. Lee, supra, 110 Or 682, 224 P 627, cited by the defendant on this point, the question determined was whether the discretion vested in the trial court in making a general order continuing cases because of lack of time to hear and dispose of the same showed an abuse of discretion. It was held that there was none.
35. Turning now to the provisions of the statute, we all agree that if a court, without cause, fails to bring an imprisoned defendant to trial at the next term of court after the indictment, he loses all discretion to continue the case. Such is the purport of State v. Clark, supra, cited by the defendant. But that is not the question here. Our question is whether the court abused its discretion in finding that there was good cause shown. In our former opinion we said that the case of State v. Lee "might well be misunderstood and create some confusion." A full examination of the original transcript and briefs in that case compels the conclusion that we failed to accord to the opinion in that case the controlling effect to which it was entitled.
In State v. Lee, supra, the defendant supported his motion for dismissal by an affidavit which negatived any consent by him to any continuance. A counter affidavit stated that criminal cases in which the indictment had been returned before the indictment of Lee, and all criminal cases in which defendants were held in custody, had been given precedence. The affidavit recited the general orders continuing pending cases at the end of each term, and stated that the delay was due to the congestion of the trial docket. The counter-affidavit failed to disclose whether the congestion was due to civil or to criminal cases. Circuit Judge Robert Tucker denied the motion. Answering the claim of *524 the state that the docket was congested, counsel for appellant, in his brief on appeal, said:
In State v. Lee one of the affidavits referred to the 5 1/2 months which had elapsed between the indictment and trial and stated that six regular trial judges and most of the time two outside judges had been sitting in Multnomah county. He further listed the only days on which criminal cases were set and the days on which no criminal cases were set, and stated that there were many days during December, January and February on which the case could have been tried. The claim that a congestion of civil cases furnished no good cause for continuing criminal cases was placed directly before the trial court, and before this court by the record. This court said:
The court then recited the general orders continuing cases, and said:
Concerning the general orders continuing all pending cases, we said:
The court said:
Finally the court said:
The state made no contention that the congestion of the docket was caused by criminal cases alone. In denying the motion, Judge Tucker was not so naive as to assume that in 5 1/2 months the seven circuit judges in Multnomah county had not tried a single civil case. Both he and this court undoubtedly knew the contrary to be true. State v. Lee, supra, has been cited with approval in Johnston v. Circuit Court, Multnomah County, supra, and State v. Swain, supra. It *527 was also cited with approval in State v. Moltzner, 140 Or 128, 13 P2d 347; State v. Weitzel, 153 Or 524, 56 P2d 1111; and State v. German, 163 Or 642, 98 P2d 6. In the last three cases the opinions of this court cited State v. Lee, supra, in support of the general proposition that lack of time is in itself good cause for not dismissing the indictment. In the Weitzel and German cases the court said that the question is "settled and foreclosed" by the cases cited. The statement in the Lee case that the constitutional provision for speedy hearing applies alike to civil and criminal cases was expressly approved in State v. Clark, supra, 86 Or 464 at 471.
36. In State v. Barrett et al., supra, 121 Or 57, 254 P 198, the indictment was returned in May, 1925, in Multnomah county. The trial was at the December term. On 14 December the defendant moved for dismissal and by affidavit stated non-consent to any postponement, and that there was no good reason for the failure to try him. Another affidavit, based on the contents of the criminal fee book showed that during June, September, October and November, 38 criminal jury cases were tried, and that there were days when a jury was obtainable and the case could have been tried. The counter affidavit is directed only to the point that the defendant agreed to the postponement. On appeal this court recognized that the only controverted issue related to the question of consent. It said:
*528 In our original opinion we inadvertently cited the Barrett case as holding that where the record shows the cause that existed for continuance, the Supreme Court will consider whether the reason found is sufficient. We did not intend to imply that the issue was to be tried de novo in this court. In the Barrett case the order of the trial court merely recited that the motion for dismissal was denied. The court set forth no reasons in its order and then clearly laid down the rule which we have previously copied verbatim to the effect that when questions of fact are involved, the trial court is in a better position to determine the issue than the appellate court, and that such questions of fact are not open for review unless the error is palpable and there has been a clear abuse of discretion. The case was decided upon that issue.
In State v. Bateham, supra, 94 Or 524, 186 P 5, the defendant was indicted in Multnomah county on 30 June 1918 and tried on 20 December. On 4 December the defendant moved for dismissal and filed the usual sworn statement of non-consent to the continuance. In that case the defendant presented sworn testimony based upon the records which showed that only 28 criminal jury trials were tried within the county during the five months following his indictment. During one month no jury cases were tried because of an epidemic of influenza. At least six circuit judges were sitting in that county during this period. Thus the record shows that if criminal cases only were tried during the four months of delay, the average case per judge would be about five, or about 1 1/4 cases per month. The state presented evidence that under the rules of court, criminal and civil trial dockets were called, and cases set for trial in the order of their entry, with certain exceptions. This certainly raises *529 a strong inference that some civil cases were set for trial between 1 August and 20 December. The record made it apparent that if the docket was congested, it was not solely because of criminal cases, and of course the court, counsel, and this court knew that civil cases were tried during this period. On appeal this court, with the record before it, recited the showing by the state that the docket was so crowded with cases at issue and for trial that it was impossible to reach the defendant's case earlier. We recited the general orders continuing cases which were made at the end of each term, and commented upon the one month when no trials were held. We then said:
After examining the record before the court we held that the issue was whether there was any abuse of discretion, and none was found. There is not a syllable in the record or opinion to indicate that the accumulation of undetermined cases consisted of criminal cases only. Common sense tells us that it did not.
In State v. Moltzner, supra, 140 Or 128, 13 P2d 347, *530 four indictments were filed on 13 August 1931. On 17 November defendant moved for immediate trial of each or any of such indictments. On 20 November the deputy district attorney filed an affidavit showing the necessity for the completion of an audit of the accounts of a building and loan association, which audit had been in preparation ever since the return of the indictment, and which was not yet completed. The affidavit showed that the audit would be completed within two or three weeks and that counsel for defendant had also requested an audit. The affidavit concluded with a request that the case be set for a day certain in the month of January. On 24 November the defendant moved for the dismissal of the four indictments, relying upon the statute. On the same day the court made an order reciting the necessity for the audit of the books and that said audit would be completed in about three weeks, and setting the case for trial on 4 January 1932. On 30 November the court made an order finding that good cause had been shown; why the indictment should not be dismissed; and denying the motion for dismissal. On 21 December the defendant filed a second motion to dismiss, which was denied on the same day. On appeal this court considered the affidavit of the deputy district attorney concerning the necessity for an audit, although that affidavit had been made before the motion to dismiss was filed. The court said:
On the merits it was held that "The character of the case supports the state's contention that the audit was essential * * *. The statement, that lack of time on the part of the court required a continuance of the unfinished business, is in itself good cause for not dismissing pending indictments: * * *" In applying the foregoing rule no distinction was made between civil and criminal cases.
In State v. Rosenberg, 71 Or 389, 142 P 624, the defendant was indicted on 19 September 1912 in Clatsop county. Nearly a year and three months later he moved for dismissal which was denied. An affidavit of the district attorney stated that the defendant could have been tried at any of the terms of court. Since the record affirmatively showed that the court did have time to try the case, the order denying the motion to dismiss was reversed by this court. The facts would appear to present a clear case of the abuse of discretion. The decision does not weaken the authorities which we have previously reviewed.
In State v. German, supra, 163 Or 642, 98 P2d 6, thirteen indictments were returned on 21 April 1937. The cause arose in Multnomah county. On 29 September 1939 the defendant filed the usual motion to dismiss under the statute. The evidence on the motion showed that 64 criminal cases which had been filed after April 1937 were tried before 29 September 1939. In most of the cases so tried the defendants had been at large on bail. The usual continuing orders were made on the last day of each term. All of the cases were for larceny by bailee and involved the same legal issues. One of the thirteen cases was tried, resulting *532 in a verdict of guilty; a new trial; and a jury disagreement. The trial court held that the continuing orders were conclusive in the absence of misrepresentation, fraud or irregularity. The motion to dismiss was denied. Substantially all arguments presented in the pending case and some additional ones, were urged upon appeal and upon petition for rehearing. This court held that lack of time to hear pending cases constituted good cause and that the order continuing cases is an absolute verity. All other contentions of the defendant were rejected without discussion.
In State v. Goldstein et al., 111 Or 221, 224 P 1087, a motion to dismiss was made under the statute and was denied. This court referred to the general order made at the close of the term and said that "such entry has been held to be sufficient."
The case of State v. Bertschinger, 93 Or 404, 177 P 63, is of especial importance. The indictment was on 1 June 1917. Motion to dismiss was on 13 December. The evidence showed that there was a stipulated continuance to the middle of October. It also showed that on September 1, civil and criminal cases had been set for trial up to the 15th of November and later in the same month civil and criminal cases were set for trial until the 30th day of November. The affidavit stated that the case could not be tried during November owing to the congestion of the docket. The motion to dismiss was denied. The fact that civil cases were set for trial during October and November while the Bertschinger case remained untried was before this court on appeal in both the transcript and a printed brief. This court said:
In State v. Chadwick, supra, 150 Or 645, 47 P2d 232, the case arose in Harney county where there were only two terms of court a year. The delays were such as would seriously suggest a violation of the constitutional provision even if there had been no statute. The defendant was indicted in November of 1931. In January, 1934 he moved for dismissal. There was consent by the defendant to a continuance "until `the next regular term'" of court, to wit, April, 1933. The case was not set for the April 1933 term nor for the October 1933 term. In January, 1934, the defendant moved to dismiss. The motion was denied on 7 April 1934, the reason given by the court being based, not upon an exercise of discretion as to facts, but on a misapprehension as to the law. The court held that the continuance had been by tacit consent of the defendant and that the defendant had waived his rights. The court then made a prospective ruling to the effect that by reason of future judicial work to be done in other counties, the court would not have time to try the defendant during the term which continued until October, 1934. The case was then set for trial on 1 October 1934 but was not then tried. On 8 October 1934 the defendant again moved for dismissal and the motion was denied. The trial took place on 15 October 1934 and the defendant appealed from a conviction. This court observed that the case had gone over for two regular terms (one full year) without consent. We then said:
The court held as a matter of law that express and not tacit consent was required to authorize the continuance, hence the reason given by the court was insufficient in law. The court also held that the trial court's order which predicted that the court "will not have time" in the future because of duties in other counties was not good cause. The judgment was reversed and the indictments ordered dismissed. The case bears no resemblance to those in which this court has given weight to discretionary orders of the trial courts, based on their judgment of the facts.
State v. German, supra, 163 Or 642, 98 P2d 6; and State v. Weitzel, supra, 153 Or 524, 56 P2d 1111, were decided after the decision of the Chadwick case. In State v. Weitzel, the opinion of this court shows only that the defendants did not consent to the continuance and that the trial court made the usual order at the end of the term continuing pending cases for want of time to try them. The court said:
The court quoted ORS 134.120 and ORS 136.070. The last-mentioned section authorizes postponement "upon sufficient cause shown" by the affidavit of the defendant or the statement of the district attorney. The court then said:
In State v. Swain, supra, 147 Or 207, 31 P2d 745, 32 P2d 773, this court, by Mr. Justice ROSSMAN, considered the application of ORS 134.110 which provides that:
The court then said:
37. At this point we may well summarize the results of our investigation. The constitutional mandate for trial without delay applies to civil and criminal cases. That mandate is not violated if the case is conducted according to fixed rules, regulations and proceedings, free from vexatious, capricious, and oppressive delay created by the ministers of justice. The determination of that question is to be made in the light of the circumstances of each particular case as a matter of judicial discretion. In the pending case there has been no violation of the constitutional right as thus defined. Of the cases in which the impact of ORS 134.120 has been considered, the following support the statement that where questions of fact are involved, especially where the question relates to the congested condition of the docket as ground for continuance, the decision of the trial court is not open to review unless the error is palpable and there has been a clear abuse of discretion. State v. Breaw; State v. Bateham; State v. Lee; State v. Barrett, et al.; Johnston v. Circuit Court, Multnomah County; State v. Chadwick; all supra. The ruling in State v. Moltzner, supra, to the effect that affidavits attacking the general orders continuing cases for want of time are "entirely insufficient to impeach the record of the court" may well be construed as a further support of the same rule. The holding that lack of time to try pending cases constitutes good cause for continuance over the term is supported in State v. Bateham; State v. Lee; State v. Moltzner; State v. Weitzel; State v. German; all supra. The holding in State v. Lee that the constitutional mandate applies to civil and criminal cases alike is supported in State v. Clark, supra, 86 Or at 471. In none *537 of these cases is it indicated that the congestion must be of criminal cases only. Regardless of the burden of proof, the evidentiary presumption is that the continuance was properly ordered. State v. Lee, and cases cited therein. The original records in several of the cases which we have reviewed in detail show that this court had before it evidence that civil cases had been tried before the criminal case was set, and in some instances that there were days when no case was tried; yet the courts have held that the general order continuing cases was controlling and constituted good cause. No decision in this state has ever held that the rule is limited to an accumulation of criminal cases only. The broad holdings of State v. Lee have been frequently cited but never questioned or limited in any subsequent case.
In Oklahoma the statute is similar to ORS 134.120, and in State v. Cole, 4 Okla Cr 25, 109 P 736, 744, the court said:
38. We recognize that there is a distinction between the rules governing civil and criminal cases. Civil cases may be continued over one or more terms without good cause shown, subject only to the limitations prescribed by the constitution, whereas criminal cases can be continued beyond the term following that in which the indictment was brought only on good cause shown. However, there is nothing in the statute which forbids a trial court, in the exercise of sound discretion, from finding that an accumulation of civil and *538 criminal cases already set (as appears in this case) constitutes good cause for continuance of a criminal case. The trial courts are certainly entitled to take notice of the condition of their own dockets. They have considered the entire record in passing upon motions to dismiss, and we too have considered the entire record, though we do so only to determine if there be an abuse of discretion.
We take judicial notice of the fact that trial courts have other and important duties beside sitting on the bench and trying jury cases. The practice of counsel who seek to overthrow the orders of the trial courts has been generally limited to a sketchy showing of the number of days in which the trial judge has sat upon the bench. We know that authorities must be examined; cases previously submitted must be decided within 90 days under the statute; and many quasi administrative duties concerning the handling of judicial business necessarily consume the time of every judge who is conscious of his duties. There are now eleven regular circuit judges in Multnomah county and two in Clackamas county, and we judicially know that one or more judges from other districts are frequently assigned to those counties and that judges pro tem have been serving from time to time. The marshaling of the judicial manpower of the state in an effort to reduce the congested condition of the dockets of Multnomah and other counties has been the avowed policy of the Chief Justices of this court. These are the methods by which the evils of delay may best be overcome.
There are many intricate and difficult problems confronting the circuit courts in the metropolitan areas; cases criminal, civil or special in nature, habeas corpus, mandamus, quo warranto, election cases, injunction *539 suits and cases involving constitutional and public questions which must frequently be decided before a legal deadline. We are profoundly convinced that it would be disastrous to lay down a rule under a statute which is not a part of the constitution, providing that all civil business before all of the judges sitting in the district must utterly cease, if necessary, in order that every criminal case in which there is no consent to continuance may be tried during the term following the term in which the indictment was returned, and in Multnomah county, during the month following the month in which the indictment was returned. In determining whether there is good cause for continuance under the statute, it is, of course, the duty of the trial court to consider the desirability that criminal cases be promptly tried, especially when the defendant is in custody. But this is only one of the matters which the court must consider in arriving at a sound conclusion under all of the circumstances of the particular case. We hold that the record in this case does not overcome the showing and the order which supports the finding of the trial court. There was no abuse of discretion.
This court has not laid down any clear and consistent rule on the issue upon which this court divided in our original decision of this case. The diversity of opinion arose from the view of some that the motion to dismiss was a direct, and of others, that it was a collateral attack on the general order continuing cases for want of time to try them.
In State v. Lee, supra, the continuing order was accorded verity but it was said "the verity has not been overthrown."
In State v. Moss, 92 Or 449, 460, 181 P 347, this court said of the trial judge denying a motion to dismiss: *540 "As he had personal knowledge of all of the proceedings, we think his ruling is entitled to some weight."
In State v. Clark, supra, a general order continuing cases to the next term was made. We quote:
The language employed would indicate that the decision might be reviewed as to abuse of discretion if there had been a bill of exceptions.
In State v. Goldstein et al., supra, 111 Or 221, 224 P 1087, all cases, civil and criminal, were continued over the term. This court said:
In State v. Swain, supra, this court, by Justice ROSSMAN, held that a general order continuing cases for want of time constituted good cause and that such orders are not subject to collateral attack.
In State v. Barrett et al, supra, 121 Or 57, 254 P 198, the decision rested alone on the holding that there was no abuse of discretion. There was no discussion concerning direct or collateral attack.
In State v. Gilbert, 55 Or 596, 112 P 436, we held that the judgment roll imports verity and until impeached is conclusive. But in that case the question was what *541 the trial court had actually done not why it had done it. The judgment roll failed to show under which of two indictments the defendant had been tried. The record was the only source of information as to what the trial court had done, and until the record showed that fact, this court was helpless to proceed. In the pending case, however, the question is not whether the court made an order continuing all cases. The question is whether the findings on which the rule was made also import conclusive verity. The same distinction which we have noted concerning the Gilbert case must also be noted concerning Ollschlager's Estate, 50 Or 55, 89 P 1049, cited in the pending opinion heretofore filed.
In State v. Moltzner, supra, this court said:
The original records on file in this case show that the contention of the defendant Moltzner was that no order continuing cases had ever been made, and it was that contention which elicited from this court the statement that the record, until impeached by an order "expunging" it, would import verity.
39. It is clear that if a judicial record recites that an order was made, which in fact never was made, the proper procedure would be to expunge the record. But here again the question is whether it is necessary to expunge the record when the order under attack was actually made and the complaint is that the reasons given for making it were insufficient. The language *542 of the Moltzner case unfortunately makes no distinction between the two situations. It occurs to us that it would have been impossible for the trial court to expunge the record in the pending case because the record truly shows the order which was in fact made. The Moltzner case cites Ex parte Jerman, 57 Or 387, 112 P 416, but this court failed to point out that the portion relied upon was found in a dissent. We have never heard of a proceeding to expunge an order which had in fact been made, nor have we known of a proceeding to expunge the reasons given by the court in an order which was in fact made. We think State v. Moltzner which was relied upon in the dissenting opinion herein was sound law. The order continuing did import verity. It constituted sufficient evidence that there was good cause for the order postponing all cases. We expressly held that the continuing order constituted good cause. It is, however, unfortunate that we intimated that a proceeding to "expunge" the order was the only means by which the correctness of the finding by the trial court could be tested.
In State v. Chapin, 74 Or 346, 349, 144 P 1187, the court expressly held that under the code "if the cause was not continued upon proper application, or unless good cause therefor was shown, it was incumbent upon the defendant to make a request to the court for such dismissal and obtain an order granting or refusing the same. * * *" It would be unusual for us now to say that the procedure followed in the pending case could not be employed to test the order because it constituted a collateral attack, when we had held in the Chapin case that the defendant's rights were waived because he had failed to follow the identical procedure.
*543 40. The Restatement of Judgments clarifies the somewhat hazy judicial atmosphere concerning the distinction between direct and collateral attacks. We quote:
Under the clear distinction drawn by the authors of the Restatement, and under the authority of the Chapin case, we think that the motion to dismiss which was filed in the action in which the order was entered constituted a proper method of raising the question. To hold otherwise would be to reverse the many cases previously cited in which the issue was raised in that manner. It is also the procedure commonly employed in other jurisdictions.
As stated in our original opinion, the motion to dismiss constituted a direct attack upon the correctness of the findings of the trial court. When this court has occasionally referred to collateral attack as *544 an additional reason for denying motions to dismiss in this type of case, we think it has intended no more than to say that we would not treat the question of good cause for continuance as res integra in this court unweighted by the finding of the trial court, but would consider only whether in deciding the issue, the court had abused its discretion. In thus construing the words occasionally used, we harmonize the numerous decisions which have been based upon the rule concerning abuse of discretion, with the few cases in which the court has intimated that the only direct attack would be a motion to expunge.
The only possible basis for a reversal of the decision of the trial court would be to hold that the trial during the April term of one or more noncriminal matters, before the trial of the Kuhnhausen case, amounted, as a pure question of law, to a violation of ORS 134.120, no matter when the noncriminal cases were set or how important or urgent they were and regardless of the condition of the docket. The statute imposes no such strict rule. We cannot read any such provision into the law and we refuse the invitation to lay down a court-made rule which would disrupt judicial business, especially in Multnomah county. If such a rule were announced, it would of necessity apply in all counties.
41. We draw the necessary conclusion that since the decision of the trial court was based upon its appraisal of the facts concerning the condition of the docket, the decision must stand. It is not tainted by any abuse of discretion.
It is argued that:
This proposition is followed by the conclusion that since the record does not affirmatively show that the defendant was present in court when the general order was made on the last day of the April term, it follows that the order is void. We have examined the few cases cited by the defendant and can find no case, whether cited or not, in which any such rule has been applied to general orders continuing all pending cases because of lack of time to try them during the term just expired. Examination of our statutes will disclose that the personal presence of a defendant in a felony case is expressly required at arraignment (ORS 135.110); for the purpose of putting in bail if defendant requires it (ORS 135.190); and on pleading guilty (ORS 135.840). The statute provides that "If the indictment is for a misdemeanor, the trial may be had in the absence of the defendant if he appears by counsel; but if it is for a felony, he shall appear in person." ORS 136.040. This section clearly refers only to personal appearance at the "trial." There is no statutory requirement of personal presence at a hearing on demurrer (ORS 135.610); on postponement after the case is at issue (ORS 136.070); or on motion to set aside an indictment (ORS 135.510). The clear implication is that the statute has expressly provided for the defendant's personal appearance whenever such presence is deemed necessary. Except as otherwise provided, the right to be present applies only to all proceedings at the trial, and even this requirement has been slightly eroded by our decisions. The *546 general order continuing all cases was no part of the trial.
In State v. Abrams, 11 Or 169, a murder case, this court said:
In State v. Moore et al., 124 Or 61, 262 P 859, this court, by Justice ROSSMAN, referred to the statute ORS 136.040 which requires the personal presence of the defendant at a felony trial. We reviewed the authorities and said:
See also State v. Savan, 148 Or 423, 36 P2d 594; Logan v. State, 131 Tenn 75, 173 SW 443; Kelly v. State, 3 Smedes & M (Miss) 518; Harris v. State (Tex Cr) 28 SW2d 813; Milton v. State, 134 Ala 42, 32 So 653; People v. Ferguson, 124 Cal App 221, 12 P2d 158; Wilson v. State, 90 Okla Cr 180, 212 P2d 172; Rigsby v. State, 55 Okla Cr 61, 24 P2d 1016.
In State v. Moltzner, supra, this court commented upon affidavits to the effect that no judge had informed affiants that such an order had been made, referring to the general orders of continuance. This would indicate at least that no such order was made *547 in the presence of the defendant, yet the court said, "This is entirely insufficient to impeach the record * * *."
42. In State v. German, supra, the right of the defendant to notice and hearing on the proposed general order continuing cases was forcefully presented in the brief of the defendant. We rejected the contention without discussion. A petition for rehearing complained of the failure of this court to consider the point. We denied the petition. The rule of State v. Moore, supra, is supported by reason as well as by authority. We think it would appear a little ridiculous to require that all defendants whose cases are pending and undecided on the last day of a term should be personally brought into court to hear the judge announce that there is no time to try pending cases at a term which ends on the day the order is made. The time at which a defendant has a right to challenge the propriety of the order continuing over the term is at the time when a motion to dismiss is heard.
In State v. Le Flohic, supra, 127 Minn 505, 150 NW 171, the phrase "good cause to the contrary" was held to refer to the cause shown upon the hearing of the motion to dismiss the indictment. The same rule was approved in State v. Kloempken, 145 Minn 496, 176 NW 642. The defendant lost no right to challenge the general order continuing cases. It was reserved to him upon his motion to dismiss. There can be no question concerning the right to challenge the general finding of good cause, by means of a motion to dismiss. It could hardly be argued that the statute would expressly authorize an appeal from an order refusing to dismiss an indictment unless the issue presented by the motion to dismiss could be litigated at the hearing thereof. ORS 138.040 expressly *548 authorizes an appeal to this court from "an order refusing to dismiss the indictment, as provided in ORS 134.120 * * *." See also 23 CJS, Criminal Law, § 974 b, p 307.
43. One question which has not been argued by either party requires comment. We have just quoted the material portion of ORS 138.040 concerning the right of appeal from an order refusing to dismiss an indictment. Under this statute the orders made in the pending case on defendant's motions to dismiss on 30 July and 18 August were final and appealable. The only notice of appeal actually filed in this case was from "the certain judgment against her (Kuhnhausen) on or about August 22, 1952", the judgment of conviction.
In State v. Clark, supra, this court said:
See also In re Von Klein, 67 Or 298, 300, 135 P 870; State v. De Grace, 144 Or 159, 164, 22 P2d 896.
In the following Oregon cases the appeals which established the law were taken, not from the final judgment of conviction, but from orders denying the *549 motion for dismissal of the indictment under ORS 134.120; State v. Breaw, 45 Or 586, 78 P 896; State v. Rosenberg, 71 Or 389, 142 P 624; State v. Hellala, 71 Or 391, 142 P 624; State v. Clark, 86 Or 464, 168 P 944; State v. Stilwell, 100 Or 637, 198 P 559; State v. Lee, 110 Or. 682, 224 P 627; Johnston v. Circuit Court, Multnomah County, 140 Or 100, 12 P2d 1027; State v. Moltzner, 140 Or 128, 13 P2d 347; State v. Weitzel, 153 Or 524, 56 P2d 1111; State v. German, 163 Or 642, 98 P2d 6.
While we are impressed by the soundness of the view that a party should appeal from the first order denying his motion to dismiss and should not be allowed to put the state to the expense of a trial on the merits while he gambles on the outcome, we have not invoked the ruling of State v. Clark, supra, as being solely decisive in this case because there have been a few cases in which this court has permitted a defendant to present the issue on his appeal from the judgment of conviction.
44. This brings us to a consideration of the assignments of alleged error at the trial on the merits. Assignment of error No. 2 reads as follows:
In our original opinion we said that this assignment is without merit. On further consideration we adhere to that view. Ex parte Jung Shing, 74 Or 372, 145 P 637; State v. Reinhart, 26 Or 466, 38 P 822; Thompson v. United States, 202 F 401; United States v. Strewl, 99 F2d 474; State v. Janiec, 20 NJSuper 471, 90 A2d 98; Lastinger v. State, 84 Ga App 760, 67 SE2d 411.
*550 Assignment of error No. 3 is as follows:
Counsel for the defendant admitted that "pictures of the scene over there might be relevant" and "material." He objected upon the familiar ground that the transparencies would be gruesome. The authorities are reviewed in State v. Long, 195 Or 81, 244 P2d 1033. On the authority of those cases we hold that assignment of error No. 3 is without merit.
45. The last assignment asserts the absence of any substantial evidence of guilt and objects to the refusal of the court to grant a directed verdict. In our original opinion we said that "a careful review of the trial record convinces us that there was substantial evidence to support the verdict * * *." We adhere to that conclusion.
The former majority opinion in this case is withdrawn and the judgment of conviction is affirmed.
LATOURETTE, C.J., specially concurring.
For the reasons stated in my former dissenting opinion I concur in the result.
TOOZE, J., dissenting.
I dissent from the majority opinion and, in so doing, wish to reaffirm what was said in our original opinion. When that opinion was handed down, I was firmly convinced that the constitution and applicable statutes meant precisely what we then said they meant, and, in my judgment, they still have the same meaning. *551 I find nothing whatever in the present majority opinion that persuades me to believe to the contrary. The constitutional rights of an individual are a priceless heritage; they are fundamental. I like to look upon them as permanent and unchangeable. They should not be one thing today and something entirely different tomorrow.
Our original opinion was not the result of hasty and careless consideration. Its conclusions were deliberately arrived at and stated, but only after careful attention had been given thereto by all members of the court. In fact, in the course of its preparation, it was rewritten several times to accord with valuable suggestions made by, and to incorporate the views and represent the convictions of, each of the members of this court who subscribed to its final draft. Every proposition upon which the present opinion is based was then thoroughly considered and fully answered.
Three of my associates dissented from the original opinion. An examination of that dissenting opinion will disclose that it was based upon the sole contention that the matter before us involved a collateral, rather than a direct, attack upon the orders of the trial court, and, for that reason only, the objections raised by defendant could not be considered or sustained. No question was raised in that dissenting opinion as to the soundness of the conclusions reached by the then majority upon the merits. It is noteworthy, therefore, that in the present prevailing opinion the theory of the former dissenting opinion that we are here confronted with a collateral, instead of a direct, attack, is expressly repudiated; and it is correctly held, as we held in our original opinion, that this appeal does involve a direct attack upon the orders of the trial court.
*552 In this case we are establishing law for the future guidance of district attorneys and the courts. Unfortunately, perhaps, we are here dealing with the constitutional and statutory rights of a defendant who has been found guilty by a jury. That finding of guilt is stressed somewhat in the majority opinion. But the fact of guilt, if it be a fact, should never deter us from correctly interpreting the constitution and statutes adopted pursuant thereto. We should not change the law merely to fit the facts of a particular case, no matter how revolting those facts might be. The constitution protects all alike, and the application of constitutional protections to individual rights is never made dependent upon the guilt or innocence of an accused. As we said in State v. Bouse, 199 Or. 676, 264 P2d 800, 805:
It must be remembered that we are here establishing a precedent, and what we may say today to meet the exigencies of this case may rise tomorrow to smite us in the face when a more meritorious factual situation is presented.
*553 In my opinion, the present majority of this court is announcing as the law certain rules which do not meet the demands of the constitution and statutes of this state, and which may, in their practical operation, prove dangerous to the established rights of individuals.
Stripped of its extensive argument, the prevailing opinion, as I interpret it, establishes the following rules:
1. That insofar as the time element is concerned, the constitutional right to a speedy trial applies with equal force to both civil and criminal cases, with neither having any right of preference over the other, and that the existence of civil cases upon a trial docket constitutes "good cause" for delaying the trial of a criminal case beyond the time fixed therefor by statute;
2. That the continuance of a criminal trial beyond the term of court in which the statute prescribes it should be tried, is solely a matter of judicial discretion, a discretion subject to being exercised upon the court's own motion, and that such continuance cannot be reviewed except for an abuse of discretion; and
3. That general and ex parte orders continuing the trial of all cases, civil and criminal, beyond the term in which the statute directs that a criminal case must be tried unless "good cause" exists for not so trying it, import verity as to the existence of such cause, and are valid and binding, even though the accused has not been afforded an opportunity to be heard as to such continuance by himself or counsel.
The rule first above stated constitutes the principal foundation for the prevailing opinion; its ultimate conclusion is dependent entirely thereon. The other rules are more or less subsidiary thereto.
*554 The record reveals that defendant was arrested on January 18, 1952, and lodged in jail. She was jointly indicted with Williams on January 24. Her codefendant filed a demurrer to the indictment, which was sustained. In passing, I note that the majority attaches some importance to the delay caused by the filing of this demurrer (some 26 days), but it is obvious that defendant was in no way responsible therefor, nor did such delay, in fact, play any important part in this case.
The case was at issue on February 25, when defendant entered her plea of "not guilty". At that time, 34 days remained of the January term of court. On March 4, the district attorney requested that a trial date be set for the trial of the two defendants. It appears, therefore, that on March 4, the state was prepared for trial. It is assumed that defendants also were ready for trial, because at no time did either take any steps to delay the trial, except as defendant Kuhnhausen's motion for a separate trial, filed March 14, might be considered such a step. The statute gave her the right to file such a motion. When the April term of court commenced, the cases were at issue as to both defendant and Williams, as was known by the trial judge. The defendants were to be tried separately. The trial court also knew that both defendants were confined in jail upon a nonbailable offense, and had been so confined continuously since January 18. He knew that under the express provisions of the statute both were entitled to be tried during the April term of court. The state elected to try Williams first, and the court readily found a date for his trial during the month of April. That trial consumed approximately three days and terminated on April 20. At that time 71 days remained of the April *555 term, and although defendant languished in jail, she was not brought to trial because, it is claimed, there were civil cases set on the trial docket; no contention has ever been made that there were any criminal cases on the docket for trial.
Vitally important, however, is the fact that on May 1, according to the statement of the trial judge (made at the time of the hearing upon defendant's motion to dismiss the indictment), the court set its calendar of cases for trial, and all of the cases so set were civil cases! He did not set defendant's case for trial at that time, nor, indeed, did he do so until early in July, after the April term had expired. It taxes one's credulity to accept the proposition that no time could reasonably be found for the trial of defendant during the months of May and June, when approximately three days only were required therefor.
In the majority opinion, it is stated:
If the foregoing statement refers to cases where the district attorney applies, or the defendant moves, for a continuance, as provided in the statutes, I am in complete accord therewith. However, from a factual standpoint as applied to the instant case, the above statement is decidedly misleading. In the case at bar, there was no accumlation of "civil and criminal" cases already set for trial; there was an accumulation only of civil cases cases which were evidently set for trial *556 on May 1, long after the case against defendant was at issue and ready for trial. Other than the Williams trial, no criminal case was tried to a jury during the April term of court (in fact, neither during the January or April terms of court), although during the January and April terms some 33 criminal matters were disposed of upon pleas. It is a matter of common knowledge (and to most members of this court, who have had extensive experience as trial judges, a matter of personal knowledge) that the disposal of criminal matters upon pleas, and without jury trial, does not seriously delay nor interfere with the orderly progress of the trials of civil or criminal cases then being heard; only a slight interruption occurs.
Defendant's case was finally set for trial for August 18, approximately seven months after she was first indicted. And the only reason assigned for this delay when the matter was before the trial court upon defendant's motion to dismiss, was the existence of the civil cases upon the trial docket!
The foregoing record squarely presented to us the question whether the existence of civil cases only on the trial docket constituted "good cause" for the delay within the meaning of the statute. We emphatically answered that question in the negative. That was the principal issue then; it is the principal issue now. To uphold the present majority opinion, it is necessary to reverse our former position. I have discovered no sound reason for so doing.
In our original opinion we pointed out that under the constitution guaranteeing to an accused a speedy trial (Art 1, § 10, Const of Oregon), and § 26-2002, OCLA (ORS 134.120), which gives effect to the constitutional provision (and the present majority opinion *557 concedes that much, quoting from decisions which so state), the trial of criminal cases does have some preference over the trial of civil cases. We noted the fact that there is no similar statute in this state applicable to civil actions. I do not intend to repeat all that was said upon that subject in our original opinion, but, for the sake of emphasis, I do wish to quote two statements contained therein. At page 703 of 266 P2d, it is stated:
At page 705 of 266 P2d, we said:
I am sure that my worthy associates who comprise the present majority in this case would not intentionally deny those fundamental truths. Yet that is exactly the effect of what they are doing when they hold that an accumulation of civil cases (not criminal, nor civil *558 and criminal) upon the trial docket was "good cause" for continuing the trial of defendant for a period of approximately six months after her case was at issue and ready for trial, and, particularly, for continuing it beyond the term in which the statute specifically directs that it should have been tried.
In our original opinion we did not intend to, nor did we, say that the preference given to the trial of criminal cases, was under all conditions absolute, nor that this right of preference should be exercised in total disregard of the trial of civil cases. We did intend to say, and, in effect, did say that in the light of the record in this case, this criminal proceeding did have a right of preference as to trial during the April term of court over the list of civil cases on the trial docket, and that "in order to afford the defendant a speedy trial in this case, and to thus preserve and protect her constitutional right, it was the duty of the court, if necessary, to take one or more of the civil cases off the docket". We also said: "The fact that a number of civil cases has been set for trial is no valid excuse for the failure to set promptly a criminal case that is at issue, if necessary to comply with the mandatory provisions of the statute". (Italics added.) To that extent only did we apply the rule of preference. Although much more was said in our original opinion, the foregoing constituted the sole basis for our ultimate conclusion. The present majority opinion necessarily rejects that holding; otherwise, it would have no foundation upon which to build. In taking that position, I think the majority has erred.
Considerable attention is given by the majority to the case of State v. Lee, 110 Or 682, 224 P 627. In our original opinion we noted certain general statements *559 contained in State v. Lee: 266 P2d 705. Our discussion of that case followed immediately after we had made the statements above quoted. We said:
In my opinion the present majority holding clearly demonstrates such misunderstanding and confusion. As abstract propositions, it is true that neither the constitution nor any statute expressly gives the "right of way" to criminal cases; and it also is true that "the right guaranteed by our fundamental law for a `speedy' hearing applies alike to civil and criminal causes". If all we had to consider was the single constitutional provision that "every man" has the right to have "justice * * * administered openly and without purchase, completely and without delay", and there was no statute applying to criminal trials such as § 26-2002, OCLA (ORS 134.120), we might well accept the statements in State v. Lee literally, and so apply them. But we cannot take and apply those statements in a literal sense without doing violence to basic purposes of the Bill of Rights, and, specifically, to the mandatory provisions of the statute.
The interpretation we placed upon the constitutional and statutory rights of the defendant in our original opinion was in keeping with natural right; it *560 carried out the established public policy of this state. Section 2-223, OCLA (ORS 174.030) provides:
When all is said and done, it is manifest that in our former opinion we simply weighed the relative rights of the private litigant in a civil case as against those of an accused in a criminal proceeding (one involving a nonbailable offense), and gave preference as to the right of a speedy trial to the accused insofar as that was necessary to comply with the constitution and the statute. The effect of the present majority opinion is to completely reverse that concept of the administration of justice. In lieu of the rule of preference as to the trial of a criminal case as we originally stated it, the majority is, in a real and practical sense, substituting a rule which, under the facts in the instant case, and in its operation, actually gives preference to the trial of civil cases, notwithstanding the plain demand and effect of the statute to the contrary. § 26-2002, OCLA (ORS 134.120).
I note the following statement in the majority opinion:
Of course, the statute does not speak of "cause", but of "good cause". If "good cause" for the continuance does not exist, the court does not "lose" any *561 discretion, because it has no discretion to lose; but it does have a mandatory duty to perform; that is, to dismiss the indictment.
The holding in State v. Clark, 86 Or 464, 470, 168 P 944, referred to above, is particularly apropos to the problems confronting us in the instant case. After quoting Art 1, § 10, Const of Oregon, and what are now §§ 26-2001, OCLA (ORS 134.110) (referring to the prompt return of indictments) and 26-2002, OCLA (ORS 134.120), this court, speaking through Mr. Justice MOORE, said:
It will be noted that the court made a statement quite similar to that later made in State v. Lee, supra, but it immediately qualified it. It also will be observed that Justice MOORE did not speak of the court "losing" discretion; he said that "the constitutional and legislative guarantee * * * necessarily deprives a court of all discretion in delaying, without cause, a hearing". (Italics mine.) In other words, it has no discretion in the matter; a strict rule of constitutional and statutory law governs.
The plain import of the above discussion by the court is to establish the proposition that much greater importance must be and is attached to the right of a speedy trial in a criminal case than to such right in a civil proceeding.
*563 Let us briefly consider the effect of an established rule that the trial of a criminal case (particularly one involving a nonbailable offense) does not take precedence over the trial of civil cases.
Under this rule a court with hundreds of civil cases at issue and ready for trial (and this situation actually prevails at times in Multnomah county), could set them for trial in order, and try all of them, as set, without regard to the criminal cases later brought to issue, but which are pending. The trial of the criminal cases could thus be continued indefinitely because of the congested trial docket. To justify this continuance of the criminal trials, all that the court need do is to enter a general and ex parte order of continuance at the end of each term, reciting the congested condition of the trial docket an order made without affording defendant or his counsel in the criminal proceeding an opportunity to be heard. Such an order will import "verity", and, according to some of our decisions, "absolute verity"; this truly creates an "iron curtain".
And during all this time, what becomes of the constitutional and statutory rights of an accused person to a speedy trial, and, specifically, of an accused person confined in jail upon a nonbailable offense; an accused who may in truth be innocent, but whether guilty or innocent, one who supposedly was protected by the fundamental law?
It may be said that the supposed situation is not likely to happen; but under the rule being established by the majority opinion, it could happen. The soundness of a rule is never tested by what is likely to occur; it is tested by what might occur. It was to provide against just such a possibility that the legislature adopted the mandatory provisions of § 26-2002, OCLA *564 (ORS 134.120). The legislature did not intend to leave the question of the enforcement of an accused's constitutional right to a speedy trial to rest upon the shifting sands of judicial discretion. I again quote the statute:
It is evident that when a motion to dismiss an indictment for lack of prosecution is filed, the burden, under the statute, is placed upon the state affirmatively to show good cause for the continuance beyond the term; the burden is not upon the defendant to establish the absence of good cause. This court has so held: State v. Bateham, 94 Or 524, 527, 186 P 5. If "good cause" is not, in fact, established, the indictment must be dismissed. The court has no discretion in the matter.
The complete record of the state's attempt to show good cause for not trying defendant during the April term of court, as the statute directed, is before us in the bill of exceptions. By no process of sound reasoning or rule of justice could we be denied the privilege of examining that record and determining therefrom whether "good cause", in fact and in law, existed. We cannot be blindfolded by some fine-spun theory of judicial discretion or collateral attack. Most of our prior decisions in which it was stated that the general orders of continuance imported verity, qualified them by giving effect thereto only "in the absence of any showing to the contrary". Here the record before us *565 affirmatively shows the absence of "good cause", unless, as the majority now seemingly holds, the presence of civil cases exclusively upon the trial docket constituted such a cause.
Section 26-2002, OCLA (ORS 134.120), supra, deals only with a maximum time limit for bringing a criminal case to trial; it has nothing whatever to do with a minimum time limit. As to a minimum time limit under the constitutional guaranty of a speedy trial, each case must necessarily be decided upon its own peculiar facts and circumstances, in the light of the applicable law and wholly apart from the statute. In my opinion, it is only in those cases where the maximum time limit under the statute is not involved that the question of an exercise of judicial discretion might arise.
However, in all cases where there is a strict rule of law applicable, as there is under § 26-2002, OCLA (ORS 134.120), the courts are bound to enforce the rule, and discretion is at an end. "Discretion" is defined in State v. Lewis, 113 Or 359, 364, 232 P 1013, as follows:
See also State ex rel. Ricco v. Biggs, 198 Or 413, 422, 255 P2d 1055; State ex rel. Bethke v. Bain, 193 Or 688, 702, 240 P2d 958.
*566 Much is said by the majority about "discretion" and "abuse of discretion" in connection with the continuance of criminal trials. It is claimed that the finding of "good cause" by the trial judge was a proper exercise of judicial discretion, and his determination cannot be disturbed except for an abuse of such discretion.
All will agree, I am certain, that an exercise of judicial discretion is involved in all cases where an application is made by the district attorney or a motion is filed by an accused, for the postponement of a criminal trial pursuant to the provisions of § 26-905, OCLA (ORS 136.070). The action of a trial court upon such an application or motion cannot be disturbed except for an abuse of discretion. That is what is held in State v. Breaw, 45 Or 568, 78 P 896, and State v. O'Neil, 13 Or 183, 9 P 284, quoted from by the majority. In Johnston v. Circuit Court, Mult. Co., 140 Or 100, 12 P2d 1027, and State v. Barrett et al., 121 Or 57, 254 P 198, also quoted from by the majority, the issues were somewhat different from those present in this case.
It is conceded that upon the hearing of a motion to dismiss an indictment for lack of prosecution, if the facts are in dispute, a finding of "good cause" by the trial court, based upon the evidence, involves an exercise of judicial discretion, and such finding cannot be disturbed except for an abuse of discretion. That is what we held in State v. Barrett et al., supra. It also is the effect of our decision in State v. Bateham, supra.
In State v. Barrett et al., the defendant was convicted and he appealed. Prior to his trial he moved for a dismissal of the indictment for lack of prosecution, *567 basing his motion upon what is now § 26-2002, OCLA (ORS 134.120), supra. His motion was supported by affidavits tending to show that the trial had not been postponed on his application or with his consent. Contrary affidavits were filed on behalf of the state, tending to show that he had expressly requested and consented to the postponement. A disputed issue of fact was there presented to the court for decision. The court denied the motion, but in doing so, it necessarily found that defendant did consent to the postponement. In disposing of this matter, Mr. Justice RAND, speaking for the court (page 59 of 121 Or), said:
In State v. Bateham, supra, defendant appealed from a conviction for an offense committed in Multnomah county. He was indicted on July 30, 1918, and tried on December 20 of that year. He entered his plea to the indictment, and the case was at issue in August. The June term of the Multnomah county circuit court extended to the first Monday in September. He was not tried in the next succeeding term (October), nor in the November term. His trial was set for December 3. At that time he moved to dismiss the indictment for lack of prosecution, pursuant to the provisions of what is now § 26-2002, OCLA (ORS 134.120). He supported his motion by affidavit to the effect that the delay of the trial was not due to his application or with his consent. It was also *568 made to appear "that only seventy criminal cases were tried in the Multnomah county circuit court during the period mentioned in the affidavit on that subject". The state opposed the motion by affidavits disclosing in substance that the trial docket of the circuit court was so crowded with cases at issue and for trial that it was impossible to reach the defendant's case earlier; "that at the end of each term the court had made a general order continuing all unfinished business to the next following term for the want of time to dispose of it; and that owing to the prevalence of influenza and in deference to the requirements of the board of health no jury had been summoned for the November term." (Italics mine.) On the appeal, this court dealt first with the alleged error in the denial of the motion to dismiss the indictment. In discussing that question, Mr. Justice BURNETT, in part, said (page 527 of 94 Or):
*569 Here again the trial court, in passing upon the motion to dismiss, was required to consider and decide upon the facts. It is obvious that the facts set forth in the affidavits filed by the state, if accepted as true by the trial court, established "good cause to the contrary". In passing upon those facts as a preliminary to the order denying the dismissal, the trial court necessarily exercised a judicial discretion.
But in the instant case, the facts are undisputed! There are no conflicts in the evidence. It follows, therefore, that the only question for determination is whether those undisputed facts constitute "good cause to the contrary" as a matter of law. The finding of the trial court that they did constitute "good cause" for the continuance beyond the statutory limit, is a legal conclusion; it is not a finding of fact based upon disputed testimony. Hence, in the light of the undisputed facts, no occasion arose for an exercise of judicial discretion. With a strict rule of law applicable to the undisputed facts (§ 26-2002, OCLA, supra), the trial court was bound to apply the rule; it had no discretion to do otherwise. This principle of law is axiomatic in this state. See State ex rel. Bethke v. Bain, supra, and State ex rel. Ricco v. Biggs, supra, and the authorities therein cited. The applicable rule is succinctly stated in State ex rel. Bethke v. Bain, supra, at page 703, as follows:
In quoting from the record of proceedings occurring upon the hearing of the motion to dismiss the indictment, the majority has quoted those portions *570 only which it apparently believes are necessary to support its position. It overlooks some very important parts of that record. I deem those portions of the record now to be referred to far more important to a determination of the basic issue in this case than what is quoted by the majority. I now quote from the record:
The trial court itself called and interrogated a deputy county clerk as a witness. The following testimony was given:
Mr. Jacob's statement (in his affidavit, and in open court) about the political campaign of the then district attorney being the cause for the failure of trying defendant during the April term was not disputed by the trial judge nor by the present district attorney. It will be a sorry day, indeed, when we recognize the political activity of a prosecuting official as "good cause" or any part of "good cause" for not promptly bringing an imprisoned defendant to trial. Notwithstanding, *572 that is not the really important thing developed by the foregoing record.
That record conclusively shows, and I wish to emphasize the fact again, that on May 1, when the court states it set cases for trial three months in advance (accounting for the court's failure to follow its usual practice and set cases on June 1), the defendant's case had long been at issue and ready for trial; her codefendant had already been tried. Why was it that her case was not set for trial on May 1 when the trials of the civil cases were set? No explanation whatever appears in the record for its not having been set at that time! A demand by the district attorney that it be set was not required by any statute of this state. Section 26-2002, OCLA, supra, itself made the demand, and it was a continuing demand. State v. Chadwick, 150 Or 645, 47 P2d 232. It was the court's positive duty to see that the mandatory requirements of the statute were met; it was not a matter of judicial discretion. But, in evident disregard of defendant's constitutional and statutory guaranty of a trial during the April term (two months of which remained on May 1), the trial court, on May 1, set the trials of civil cases exclusively for a period of three months in advance and into the next term of court. Hence, on May 1 the court created its own congested docket of civil cases, which, it is now claimed, constituted "good cause" for the continuance of defendant's trial. Are the constitutional and statutory rights of an accused to be so easily evaded and denied, and, particularly, the rights of a defendant who had for months been continuously confined in jail? Under no reasonable theory could that be deemed an exercise of judicial discretion. It was simply the failure to perform an absolute duty. In re Von Klein, 67 Or 298, 135 P 870.
*573 As before observed, no good reason, nor, in fact, any reason whatever, is assigned for not including defendant's case in the list of cases set for trial on May 1, unless the political activities of the then district attorney be considered some sort of reason. On May 1 no other criminal case was pending and awaiting trial. Despite this record, it is now calmly announced in the prevailing opinion that the trial court properly exercised a judicial discretion in continuing defendant's trial beyond the term fixed therefor by positive rule of law. Judicial discretion! Is there no limit to the excusable errors that may be committed in thy name?
The rule we established in our original opinion, but which the majority now rejects, to-wit: that the trials of criminal cases do take precedence over the trials of civil cases to the extent necessary to comply with the constitution and statute, is not exactly a one-way proposition. As was recently stated in Portland by a noted U.S. District Judge of the Eastern District of Michigan: "The public has the right to demand that an accused person shall have a speedy trial * * *. Certainty of prosecution and prompt punishment are more effective deterrents than heavy sentences." It is manifest that the public has no such direct interest in the speedy trial of civil cases in general. To further the interests of the public in the speedy trial of criminal cases is the principal purpose of the restrictions placed upon the postponement of such trials by the provisions of § 26-905, OCLA (ORS 136.070).
I deem it unnecessary to further discuss this point. In my opinion, the rule sought to be established in the prevailing opinion, which denies any right of priority for the trials of criminal cases over those of civil cases, is fraught with danger to the rights and liberty *574 of individuals; it is a rule which I believe will prove to be inimical to the public's best interests, a rule that cannot be justified in the light of the plain meaning of the constitution and statutes.
The ex parte order for continuance in this case, and upon which the majority so strongly relies, has for its sole ground of "good cause" therefor the presence on the trial docket of civil cases only, cases set for trial on May 1. The prevailing opinion must stand or fall upon the premise that such is "good cause", as a matter of law. That is the issue.
I have before me the published comment of a distinguished member of the legislative assembly of this state concerning our original opinion. It is so pertinent to what I have in mind that I adopt it as my own. I quote:
The prevailing opinion devotes much space to a discussion of the relationship between the constitutional provision and § 26-2002, OCLA. It seeks to establish the proposition that we were in error in our original opinion when we said that the statute constituted *575 the legislative construction and definition of the constitutional provision, and that, having been adopted contemporaneously with the adoption of the constitution, it must be read into and considered a part of the constitutional guaranty. That, in effect is substantially what was said in State v. Clark, supra. I abstain from discussing that proposition in this opinion, because, whether right or wrong, it has nothing to do with the basic issue in this case. However, by not discussing it, I do not wish to be understood as subscribing to the views now announced.
I have frequently mentioned the ex parte orders of the trial court continuing the trials of cases. By so doing, I have not intended to concede their validity for any purpose connected with this case. In my opinion, the ex parte order entered by the trial court at the end of the April term, under which it is contended defendant's trial was properly continued, and which order was made without first affording the accused or her counsel an opportunity to be present or heard, directly affected a substantial right of the accused and constituted a denial of her constitutional right to be heard by herself and counsel (Art 1, § 11, Const. of Oregon), and is, as to her, absolutely void and of no effect. I refrain from giving my detailed reasons and authorities for this conclusion simply because I am advised that one of my associates proposes to discuss that phase of the problem, and he and I are in complete accord upon the question.
I adhere to our former opinion.
ROSSMAN and PERRY, JJ., concur in this opinion.
ROSSMAN, J., dissenting.
The opinion of this court as first announced gave effect to a principle of constitutional law which the *576 Anglo-Saxon, seven hundred years ago, deemed so vital that he wrote it into the Great Charter. Few of the cherished rights that protect those accused of crime can boast a heritage equally long and illustrious. The most unlettered man in the street, living amid our maze of laws, always has in mind that, if he becomes ensnared in our complex legal system, the State guarantees him a speedy trial. Constitutional rights are not to be apportioned by allotting a large portion to those whose guilt is conjectural, but only a small droplet to those who stand bereft of the mantle of innocence.
It is incumbent upon us to examine closely the justification which is offered for the holding whereby this court on this day reverses its former decision. Those who in the days to come will sit as our successors upon the bench which we now occupy will deem that this was an evil day if we now become oblivious to the rights of the accused, turn our backs upon Magna Charta and proclaim that a basic protection from the tyranny of the State has faded out of our constitution.
We must not assume that this defendant is the only person whose interests are at stake. Others may languish in jail for periods longer than hers. But let us for the moment forget about the accused. No less a person than William Howard Taft declared, "The administration of criminal law in this country is a disgrace to our civilization." The principal reason why administration of the criminal law is a disgrace is because of the long delay which attends its enforcement. Normally, a long wait occurs after an accused has been indicted and before he is brought to trial. The most practical way to rid the criminal law of its disgrace is to try criminal cases promptly. Soon after our original opinion was announced, the newspapers began publishing items indicating that because *577 of the holding in this case courts and prosecuting attorneys were seeing to it that pending cases were set for trial. We were on our way to improvement, but today we lapse back to the condition which caused Mr. Taft to declare, "The administration of criminal law in this country is a disgrace."
The prevailing opinion holds that, in the purview of constitutional provisions which guarantee speedy trial, a criminal case has no preference over a civil one. A judge who entertains that view will merely count his cases, but will not take note of their nature or relative importance. He will operate like a piece-worker. In that view of the matter, one whose interests are subject to the paralyzing effect of an injunction will fare no better when a docket is set than a litigant such as John Jarndyce of Bleak House. Obviously, if we are justified in our boast that we are civilized and that our courts administer justice, we must hold that the case of a person who is confined in jail upon a murder charge is more important to society than a civil case which involves nothing more than a small mercantile account. When the State assumes a monopoly upon the administration of justice, it must promise to adjudge all cases, whether civil or criminal, promptly. But that it not tantamount to saying that when a judge sets his docket he may blindfold himself and become heedless of the relative importance of the cases. In the setting of dockets, our legislature has decreed that criminal cases are entitled to precedence. Such is the plain mandate of ORS 134.120.
It is no novelty to observe a judge of our circuit court or one of our federal judges dismiss civil cases which were not prosecuted with requisite diligence. In fact, Oregon has legislation upon that very subject: ORS 18.260. The federal rule is Rule 41(b), Federal *578 Rules of Civil Procedure, 28 USCA. A recent example of judicial action which dismissed a civil case for want of prompt prosecution is Reed v. First National Bank of Gardiner, 194 Or 45, 241 P2d 109.
The Rules of Criminal Procedure for the District Court of the United States, which were adopted by the Federal Supreme Court upon the recommendation of a committee appointed by that court and headed by Honorable Arthur T. Vanderbilt, contains this provision:
That rule is the latest enactment upon the subject of prompt trial of criminal cases. It represents the views of the best elements of the profession. Before the rule was submitted to our highest court, it, as also all the other proposed criminal rules, was debated and analyzed by bar associations throughout the nation. Surely under the rule just quoted no one would claim that delay in the trial of a homicide case was necessary if the trial was postponed by the judge so that he could give his time to cases involving nothing more important than small sums of money.
The prevailing opinion makes much ado over the fact that a constitutional provision which provides for prompt trials cannot be limited by the enactments of the legislature. I had not thought that our former opinion said anything to the contrary. This court would have little difficulty and no hesitancy in declaring unconstitutional a statute which undertook to declare that a trial was timely if it followed the indictment within, say, twelve years. But can we say that the constitutional command would be violated if the legislature *579 should require that a trial be had within a very short period of time? The majority regard the present statutory command as too confining for "present-day conditions." If the statute had imposed a greater limit upon the State than the constitution countenances, then the majority should strike down the statute. The constitution is no less the source of power for the state than the shield of the accused. If the power of the people to enforce the law is prescribed by a statute, then that statute must yield to the paramount law.
No one claims that the rights established by ORS 134.120 rise to constitutional status so that no succeeding legislature could lengthen the time in which a trial may be brought after indictment. It is my belief, however, that ORS 134.120 measures and gives meaning to the language "without delay". The statute is constitutional because it sets a maximum time which is comparable with the time allowed, not only in other jurisdictions, but also historically. So long as the statutory command lies within the time known historically and contemporaneously, it will furnish the constitutional standard.
The prevailing opinion, rejecting the standard given by ORS 134.120, says that the criterion of "without delay" is the discretion of the trial court. It furnishes us no test, no guide, no rule whereby we may know that the discretion has been faithfully exercised. It is content to say that the record in this case discloses no abuse of discretion. We are left with no intimation of what an abuse may be. The rule under analysis may work both ways. Let us assume that a person accused of a serious crime has been released upon bail and that the judge repeatedly overrules the district attorney's applications to set the case for trial. *580 Let us suppose that the judge fills his docket with civil cases. Now let us assume that the district attorney, after meeting with the succession of rebuffs, applies to this court for a writ of mandamus directed to the judge to set the case for trial. Can anyone discern in the prevailing opinion any hope that the mandamus proceeding could succeed?
The idea that the duty to try the defendant without undue delay is entrusted to the discretion of the trial judge is not new. It was rejected by this court many years ago. In re Von Klein, 67 Or 298, 135 P 870, was an original proceeding in mandamus. The order sought was to direct the trial court to dismiss a prosecution because the case was not brought to trial within the statutory time. This court quashed the writ on the ground that the remedy by appeal from the order was adequate. The fundamental problem of discretion was handled by Mr. Justice McBRIDE in this manner:
That holding is ignored and evidently overruled by the one announced today.
*581 The prevailing opinion next concerns itself with the statute (now ORS 134.120) which was construed in the language just quoted. In the case at bar the time has no doubt passed within which a trial can be held without the invocation of the "good cause" exception which forms a part of ORS 134.120.
The opinion written by Mr. Justice BRAND gathers together bits of language selected from various decisions in which ORS 134.120 has been involved. In some cases, Mr. Justice BRAND returned to the original affidavits and records which had been filed in the case. From the excerpts of the decisions which he sets forth it appears that certain phrases have kept on cropping up.
I will now set forth a chronological treatment of the cases in which ORS 134.120 was involved, under a belief that a statement of the actual holdings will be more useful and meaningful than a collection of selected passages.
We begin with State v. Breaw, 45 Or 586, 78 P 896. That decision held that the words "next term" meant the term following the one in which the indictment was returned. The court affirmed the denial of a motion to dismiss the remaining indictments because they were set for trial in the term following the term in which they were found.
In State v. Rosenberg, 71 Or 389, 142 P 624, and State v. Hellala, 71 Or 391, 142 P 624, the indictments were ordered dismissed and the defendants discharged. The affidavit of the district attorney to the effect that he could not reach an agreement with counsel for the defendants as to the time of trial was held insufficient cause for postponement.
State v. Clark 86 Or 464, 168 P 944, held that the illness of one defendant, requiring delay of trial on one *582 indictment, and a trial resulting in a hung jury in the trial upon the other indictment, were good cause for continuing the cases to the next term.
In State v. Moss, 92 Or 449, 181 P 347, the court affirmed a denial of the motion to dismiss because of the consent of the defendant.
State v. Bertschinger, 93 Or 404, 177 P 63, sustained the validity of an order which overruled a motion to dismiss. The trial was initially delayed by agreement between counsel and was not set until two months afterward. This court said:
In State v. Bateham, 94 Or 524, 186 P 5, the denial of the motion to dismiss was sustained upon the ground of the insufficiency of the appellant's showing. Mr. Justice BURNETT, speaking for the court, said:
*583 The defense merely recited the number of criminal cases that had been decided.
In State v. Stilwell, 100 Or 637, 198 P 559, the court affirmed the denial of the motion to dismiss on the ground that the delay was caused by the erroneous grant upon the defendant's application of a change of venue.
State v. Lee, 110 Or 682, 224 P 627, holds everything that the prevailing opinion claims for it and is indeed their oracle.
State v. Goldstein, 111 Or 221, 224 P 1087, affirmed the trial court's denial of the defendant's motion to dismiss an appeal from the defendant's conviction. The continuing order recited that the criminal docket was so congested that it was impossible to try additional cases at the instant term. The decision of this court said:
State v. Barrett, 121 Or 57, 254 P 198, affirmed the conviction, and in so doing declared that the trial court was in a better position than this court to determine whether the defendant had consented to the delay.
Johnston v. Circuit Court for Multnomah County, 140 Or 100, 12 P2d 1027, was an original proceeding in mandamus. The court held that the cause of the delay was the procedure followed by the defendant which included several demurrers, a change of attorneys and a petition for a change of venue.
In State v. Moltzner, 140 Or 128, 13 P2d 347, the denial of the defendant's motion to dismiss was *584 affirmed. The court ruled that it was proper that an audit should be made and held that lack of time was good cause for not dismissing the indictments. As to the showing made, the court said:
In State v. Swain, 147 Or 207, 31 P2d 745, 32 P2d 773, it was held that the defendant's absence from the state due to his imprisonment in California was good cause for not dismissing the indictment.
State v. Chadwick, 150 Or 645, 47 P2d 232, ordered the indictment dismissed and the defendant discharged. It held that an implied consent was insufficient good cause. The decision declared that when the trial court gives the reason why a case was continued, this court will determine the sufficiency of that reason. It further stated that "lack of time" is not good cause.
State v. Weitzel, 153 Or 524, 56 P2d 1111, and State v. German, 163 Or 642, 98 P2d 6, held, on the authority of State v. Lee, supra, that the continuing order was entitled to absolute verity.
The foregoing are our precedents. The prevailing opinion holds that (1) "lack of time" is a good cause for not dismissing an indictment which was not tried within the time permitted by ORS 134.120; (2) in this case there was a "lack of time"; and (3) the continuing order which recites "lack of time" renders the order *585 virtually unimpeachable because the matter is discretionary with the trial court.
The opinion penned by Mr. Justice BRAND accords to State v. Lee, supra, controlling effect. The soundness of that decision is essential to the prevailing opinion. Unless the pronouncements in State v. Lee are correct, the prevailing opinion cannot stand.
The indictment in State v. Lee, which accused the defendant of the crime of nonsupport, was returned November 10, 1921. After the indictment had been returned, the defendant was released from incarceration upon his own recognizance. Later, the cause was continued from term to term of court until, finally, on March 13, it was set for trial on March 20, 1922. The orders continuing the case from term to term recited: "because of lack of time on the part of the court to hear and dispose of the same." March 13, 1922, the defendant moved for a dismissal. According to the decision, "The showing made by the defendant discloses that a number of days in the terms of court were permitted to pass in which no criminal cases were heard." The defendant depended upon the statute which is now ORS 134.120. The motion was denied. In sustaining the order of denial, this court's decision depended upon the proposition that (1) constitutional provisions which make provision for speedy trial make no distinction between civil and criminal cases; (2) the court's order continuing the case to the next term of court "because of lack of time" has not been impeached; and (3) setting cases for trial lies within the discretion of the trial court.
Since the holding in State v. Lee is vital to the prevailing opinion, an analysis will now be made of that decision. The latter is comparatively short. The part which is material to this case cited and depended *586 upon Ex parte Larkin, 11 Nev 90; State v. Hecht, 90 Kan 802, 136 P 251; State v. Bertschinger, 93 Or 404, 177 P 63; State v. Bateham, 94 Or 524, 186 P 5; 8 RCL, p 72, § 26; and 16 CJ 445. Let us now acquaint ourselves with those authorities.
The first of the authorities cited in State v. Lee is Ex parte Larkin. State v. Lee quoted from that decision, and the prevailing opinion fuses the quoted excerpt into itself. By turning to Ex parte Larkin, we observe that Nevada had a statute similar to ORS 134.120. The Nevada court found that the hearing of Ex parte Larkin in the trial court was delayed with good cause. The following paragraph taken from Ex parte Larkin reveals the nature of the good cause, but this paragraph was not quoted in State v. Lee, nor is it mentioned in the prevailing opinion.
Clearly, those facts had no parallel in State v. Lee, and they have no resemblance to anything in the case at bar. Those who esteem constitutional rights and who are loath to see the right to speedy trial frittered away readily recognize that a disaster of the proportions described in the quoted paragraph was good cause for delaying the trial of a case.
State v. Lee next cited State v. Hecht and, concerning it, used this phrase, "to like effect". The prevailing *587 opinion quotes the part of State v. Lee which refers to State v. Hecht and which employs the phrase "to like effect". Let us now turn to State v. Hecht. It was an appeal by the State of Kansas from a dismissal of a prosecution under a Kansas statute which was similar to ours except that it expressly provided that want of time was a sufficient excuse. The court held that the illness of a county attorney might be deemed a sufficient cause for delay, but, going on, interpreted the order which dismissed the prosecution as a finding that the illness did not in fact exist, or that if it did exist it constituted no justification for delay because a deputy prosecuting attorney might have been assigned to conduct the case. The court, in rendering its decision, indicated specific examples of what might be deemed a "lack of time". We take the following from the decision:
State v. Hecht, therefore, was an instance in which an order of dismissal was affirmed. It does not sustain *588 State v. Lee. We have already reviewed State v. Bertschinger and State v. Bateham, the other two decisions cited in State v. Lee.
State v. Lee recites, and the prevailing opinion repeats, language taken from 8 RCL and 16 CJ. Those are worthy treatises, but they were not intended to be used other than as the cases cited in support of them used the language and illustrate its application. Mr. Justice BRAND underscored portions of the material which State v. Lee quotes from 16 CJ. To set forth exhaustively in this opinion the cases cited in 16 CJ would occupy an undue amount of space. All of the decisions cited by 16 CJ and 8 RCL have been examined. A reading of them reveals no support for the position taken by the prevailing opinion. They do not authorize a postponement of a criminal case for the purpose of enabling the court to try civil cases. For the proposition, "by delay occasioned by want of time to try the case", 16 CJ cites only Sample v. State, 138 Ala 259, 36 So 367. In that case, it appeared that the delay beyond the statutory time was caused by the exhaustion of the names in the jury box. Alabama law required the case to be tried before the venire drawn from the jury box and rendered the court powerless to refill the box. Therefore, the trial court could proceed no further in that term of court. As I just said, Sample v. State is the only authority cited by 16 CJ in support of its statement that a delay is justified if it is "occasioned by want of time to try the case." But 16 CJ also says that delay is warranted if caused "by accumulation of business rendering trial impossible." In support of that statement, the text cites Commonwealth v. Trost, 21 Pa Dist 1081. There the delay was occasioned by the necessity of making a medical analysis upon the remains of the victim of the purported *589 crime for the purpose of detecting evidence of poison. In addition, the court found that the motion was not timely since the full time had not elapsed for the trial of the accused. People v. Moran, 144 Cal 48, 77 P 777, is also cited by CJ in support of the statement just quoted. In that case the defendant was indicted jointly with three others. All four moved for separate trials. A California statute provided that unless good cause was shown or the accused asked for a continuance, his trial must be commenced within 60 days after the information against him was filed. The defendant's trial occurred 62 days after the information was filed. The trial judge, in setting his docket, set first the trial of one Buckley, that is, one of the three jointly accused with the defendant. In sustaining that act, the decision under review reasoned: "The four defendants had demanded separate trials, and if they were tried in the same court, the trials must follow in succession." Buckley's trial was set for commencement within the 60-day period. In setting it, the trial judge left vacant, obedient to established custom, the period between Christmas and New Year's Day. Buckley's trial was protracted. When its end was envisioned it was inferred that it would conclude Friday, February 7, and thereupon the court set the defendant's trial to begin Monday, February 10, which, according to the decision, "was the earliest date it could have been commenced unless it had been put down for the preceding Saturday." But when it was set no one knew that Buckley's trial would actually conclude Friday, February 7. The court, in sustaining the order which denied the motion for dismissal, held that all of the above was reasonable and that it constituted good cause for the delay of two days beyond the 60-day period. I shall review no further the *590 cases cited in 16 CJ. When analyzed, all of them resemble the cases that I have reviewed. They afford, in my opinion, no justification for setting civil cases in preference to criminal ones and thereby postponing the trial of a person who is held in jail upon a nonbailable offense. Nor do they grant the trial judge carte blanche discretion in the administration of constitutional provisions which guarantee speedy trial. They do not invest him with discretion in complying with the demands of statutes such as ORS 134.120. Compliance with such statutes is mandatory, not discretionary. A part of 16 CJ, which seemingly State v. Lee and the prevailing opinion overlooked, reads as follows:
I revert again to the authorities cited in State v. Lee. It will be recalled that it quotes a passage from 8 RCL, p 72, § 26, and that the prevailing opinion reproduces that quotation. A reading of RCL shows that it relies largely upon a note in 85 ASR 187. Examination of the cases cited in the note indicates that the nearest approach to the situation before us is in instances in which the trial court's docket was clogged with criminal, not civil, cases. A part of 8 RCL, § 26, which is quoted in neither State v. Lee nor in the prevailing opinion is this:
That language is repeated verbatim in 14 Am Jur, Criminal Law, p 861, § 136.
From the foregoing, we observe an utter dearth of support for the holding in State v. Lee. The very authorities which it summoned to its aid refused to respond. Some which it cited held to the direct opposite of the conclusion to which State v. Lee came. Mr. Justice BROWN, the author of that decision, rendered long and meritorious service to the people of Oregon, first as District Attorney, then as Attorney General and, finally, upon the bench of this court. Experience indicates that even the best of judges once in a while err. As we have seen, State v. Lee is unsupported by authority. Its broad pronouncements cannot stand the test of reason. Moreover, we know from the teaching of experience that when the accused has shown, as she did in this case, that she was not responsible for the delay, it is just to put the burden upon the State to prove good cause for the failure to try the case in the next term of court. Experience also teaches that if the State is permitted to justify the delay by showing that the judge was engaged in the trial of civil cases or in office work [as the prevailing opinion intimates], the accused can never hope to succeed in availing himself of his constitutional right to a prompt trial. If such excuses are to be accepted, constitutional provisions and statutes awarding prompt trials may as well be repealed.
*592 State v. Weitzel, supra, and State v. German, supra, cannot supply the fundamental soundness to sustain the law announced in State v. Lee. Although language similar to that in State v. Lee can be found in cases cited in it, the holdings in terms of the underlying facts do not furnish support for its broad doctrine. Consent was found to be a factor in State v. Clark, supra, State v. Moss, supra, and State v. Barrett, supra. Additional factors in State v. Clark, supra, were that in a previous trial a disagreement occurred and the defendant became ill. State v. Stilwell, supra, and Johnston v. Circuit Court for Multnomah County, supra, were based upon the dilatory procedure employed by the defendants which resulted in the delay. State v. Swain, supra, depended upon the absence of the defendant from the jurisdiction. Those cases were based upon causes that are fundamentally different from a lack of time resulting from the setting of civil cases in lieu of the accused's criminal trial.
The remaining four cases, which held that the prosecution should not be dismissed, turned upon the failure to show that good cause was lacking rather than holding that the claimed events, if true, constituted good cause. State v. Bateham, supra, indicated that the defendant should have shown that there were days when the cause could have been heard. The showing of the mere number of criminal cases heard during the prior terms was deemed insufficient. State v. Bertschinger, supra, declared that there was no open date when the cause could have been heard and that the case was actually set down on the first open date. State v. Goldstein, supra, held that when the order recited that the criminal docket was congested, and no proof to the contrary was offered, the order would be taken as a verity against the claim that it was made without notice *593 and opportunity to rebut. In State v. Moltzner, supra, delay was deemed proper in order to enable the State to complete an audit.
The farthest that the cases last cited go in the direction of the prevailing opinion is to hold that the showing made by an accused in support of his motion to dismiss must impeach the order of the trial court which recites lack of time, and also prove that there were days when the case could have been heard. The statement in State v. Moltzner, supra, that the order is taken as an absolute verity should not be misunderstood. That opinion clearly indicates that the attack upon the order should be made in the trial court. A motion to dismiss the indictment because of failure to try in the next term and charging the absence of good cause necessarily attacks that order. Because the trial judge decides adversely to the mover does not mean that the order stands sacrosanct. The decision of the trial court can be appealed, and this court will review the decision of the trial court. Obviously, if the order was literally unimpeachable, there could be no appeal from the trial court. Impeachment is dependent upon the showing made at the hearing on the motion.
Our decisions show that this court is ready to justify a delay in the trial of a criminal case when a showing has been made that the delay was caused by some substantial event, such as consent, dilatory tactics by the defendant, or an unimpeached, packed criminal docket. But how can one justify a doctrine such as the prevailing opinion attributes to State v. Lee, whereby an accused's constitutional and statutory rights are lost to him if the trial judge chooses so to arrange his docket that he cannot hear the case within *594 the allotted time? If the courts fail to perform properly their duties, we cannot visit that failure upon the hapless defendant. To support the prevailing opinion, one must assert that all of the cases in Oregon, other than State v. Lee, State v. Weitzel and State v. German, are unsound and that the jurists sitting in other jurisdictions, whose decisions are mentioned in preceding paragraphs, misunderstood the guarantee of a speedy trial and misconstrued statutes similar to ORS 134.120. Clearly, State v. Lee as a precedent is entitled to no value.
The opening paragraph of this opinion mentions the fact that the constitutional right under consideration is a venerable one. In Anglo-Saxon jurisprudence it received royal assent when King John affixed his seal to Magna Charta in 1215. Four hundred years later it again received royal approval. At that time Charles I gave his royal assent to the Petition of Rights, penned by none other than Sir Edward Coke, the fountainhead of the common law. The acquiescence of neither King John nor King Charles in those documents was voluntary. But neither could withstand the determined demands of their subjects for assurance that rights, which the succeeding centuries have vindicated, would any longer be trod underfoot. Coke knew whereof he wrote when he penned the Petition of Rights for seven months he had been imprisoned in London Tower without trial and without being faced with any charge. Those two great charters of Anglo-Saxon freedom have been the inspiration of hundreds of constitutional and statutory provisions which guarantee the accused that he shall not languish in prison for an undue period of time awaiting trial.
The Model Code of Criminal Procedure, written by *595 the American Law Institute, contains this provision (§ 292):
A note appended to the section suggests that in the blank space "words appropriate to accomplish the trial or dismissal within about three months should be inserted." The supplement to the code shows that 31 states have legislation which authorizes the dismissal of the prosecution for failure to try the accused within a stated time. Our three neighboring states of California, Idaho and Washington limit the time to 60 days after indictment. Nevada, the fourth state which borders upon Oregon, has a statutory limit the same as ours.
From the foregoing, we see that the right of an accused to a trial free from undue delay has engaged the attention of constitution writers and lawmakers for more than seven centuries of time. Those friends of justice have realized that unless a limit is placed upon the period within which an accused can be held in jail awaiting trial, liberties will be at the pleasure of the crown or the executive branch of the government. Throughout all of that period of 700 years all realized that the man upon the bench has some discretion in the matter, but none have been willing to subject the right of the accused even to the discretion of the prospective trial judge. The object of the determined *596 quest was to secure legislation whereby a time limit would be fixed and that, unless the prosecution began within that time or the State made an affirmative showing of inability to do so, the prosecution would be dismissed.
To hold at this late date that compliance with the constitutional and statutory provisions is discretionary with the trial judge defeats the efforts of the last seven centuries of time. Further to hold that a trial judge can delay the trial of an accused beyond the constitutional and statutory limits by filling his docket with civil cases empties the constitution and the statute of their meaning. When the words have been stripped of their meaning, they remain, it is true, but they linger on only as gaunt reminders of effective rights which this day have departed.
I dissent. Our former opinion is without error.
TOOZE and PERRY, JJ., concur in this dissent.
PERRY, J., dissenting.
I am unable to agree with the reasoning, and, therefore, the result, of the prevailing opinion and the specially concurring opinion, and in dissenting therefrom I wish to set forth some of my reasons why I still adhere to the views of this court as expressed in our former opinion.
As I view the prevailing and specially concurring opinions, in order that those opinions may have any foundation at all upon which to build, they must rely entirely upon the general order of continuance made and entered by the trial court on June 30, 1952.
The prevailing opinion attempts to breathe validity into the order by making it discretionary with the trial court on his own motion to continue criminal cases beyond the next term of court in which the indictment *597 is found, and the specially concurring opinion makes such an order of the court nonreviewable in this court because an appeal is not a direct attack upon the order, but is collateral thereto.
It seems to me that the statute is clear and unambiguous. It reads as follows: "If a defendant indicted for a crime, whose trial has not been postponed upon his application or by his consent, be not brought to trial at the next term of the court in which the indictment is triable, after it is found, the court must order the indictment to be dismissed, unless good cause to the contrary be shown". § 26-2002, OCLA, (ORS 134.120). This statute sets not the minimum time, but the maximum time in which a defendant may be held before being tried, or the cause dismissed. It does not say that the court "may" dismiss, it uses the positive term "must", and is mandatory as a rule of law, ordering dismissal unless any one of three conditions exist, to-wit: (1) the defendant has requested a postponement beyond the period of time under the terms of the statute, (2) the defendant has consented to a postponement beyond the time limited by the terms of the statute, or (3) when, although the time limit of the statute has expired, the court can say that a good cause existed for not trying the defendant within the time limited and prescribed by the statute. In this matter we are concerned only with the last, or third, proposition.
The people of this state enacted § 26-2002, OCLA, (ORS 134.120) as a positive rule of law to govern criminal proceedings. Since this law is mandatory, no discretion vests in the trial court. "Where there is a clearly defined and well-settled applicable rule of law the courts are bound to enforce the rule and discretion is at an end". State v. Lewis, 113 Or 359, *598 364, 230 P 543, 232 P 1013; Long v. George, 296 Mass 574, 7 NE2d 149; Wilson v. Michigan State Board of Registration in Medicine, 228 Mich 25, 199 NW 643; Graham v. Yakima Stock Brokers, 192 Wash 121, 72 P2d 1041.
In the case of In re Von Klein, 67 Or 298, 135 P 870, where the defendant sought release by mandamus for delay in bringing him to trial, Mr. Chief Justice McBRIDE on page 301 of the opinion said:
It is, therefore, not a matter of judicial discretion where there is no dispute on the facts, but a matter of judicial judgment upon a question of law as to whether or not there has been a showing made of good cause for refusing the defendant's application for a dismissal.
In my opinion "good cause" must be such a cause as is capable of being recognized in the law as a lawful excuse for the violation of the defendant's right to a speedy trial under the constitution as defined by the terms of the statute. Under the statute, the burden rests upon the State to show lawful excuse. State v. Bateham, 94 Or 524, 186 P 5. The very terms of the statute do not permit the making of an order governing the future; it provides for the determination of facts in retrospect. The right of the defendant to a dismissal accrues when the statutory time for trial has expired, and not before; it is at this time that *599 the trial court must determine whether or not there existed in the past good cause why the defendant was not given a speedy trial as prescribed.
A general order such as was issued in this case at the end of the January term that the court did not have time to dispose of such cases during that term may be of some effect where the continuance is from the term in which the indictment is returned to the term immediately following, as such a continuance postpones the hearing only within the maximum terms of a speedy trial as provided by the statute, and the reasoning of the case of State v. Abrams, 11 Or 169, 8 P 327, cited in the prevailing opinion, would apply. But in the matter before us, the continuance of the case was beyond the terms of the statute, and the trial court's action on its own motion, in the absence of the defendant and her counsel, is to deny the defendant her constitutional and statutory right (for it is conceded that the defendant had a constitutional and statutory right to be tried at the April term of the court) without an opportunity to be heard.
The prevailing opinion and the specially concurring opinion by approving the action of the trial court and giving a legal status to a general order of continuance in criminal cases that will extend the time of trial beyond the terms of the statute, done in the absence of and without notice given to either the defendant or her counsel, entirely destroys the statute and sets a dangerous course. This, not because of the fact that a defendant is given the right to be present at every stage of the trial, but rather upon the proposition that the court cannot, by its actions in entering such an order, waive a defendant's right to a speedy trial as defined by the statute (State v. Clark, 86 Or 464, 168 P 944) without giving him an opportunity to *600 be heard in person or by counsel, because such action would be in direct violation of § 11, Art I of our Constitution. It is true that the setting of the time of trial, motions upon the law, and, ordinarily, continuances granted on application or motion before the impaneling of the jury, are not a part of the trial (State v. Moore, 124 Or 61, 66, 262 P 859), and the presence of a defendant is not ordinarily required, the rights of a defendant being protected if his counsel alone is present. The rule that the defendant need not be present at all proceedings affecting his rights is based upon the proposition that when a question of law is being determined, not a question of fact, then he is relying solely upon the status of the law, a matter within the knowledge of his counsel, "for where no fact in pais is involved, and all is of law, there is nothing which a lay prisoner can do or suggest in the case; his interests are then wholly in the keeping of his counsel." 1 Bishop's New Criminal Procedure, 2d ed, 235, § 269. But in this case the court, in violation of the defendant's right to be represented by counsel at all stages of the proceedings, determined adversely to the defendant's rights the question of fact, to-wit: that the court did not have time to dispose of this case within the time prescribed by statute. It is undeniable that this is a finding of fact that directly affected the constitutional and statutory right of the defendant.
The prevailing opinion admits that the order of the court is subject to attack, but sustains the decision of the trial court on the basis that the setting of civil cases on May 1, 1952, for a period of 71 days in advance [the defendant's case had long been at issue and the State had requested a trial date within the term] and refusing to continue a civil case so as to grant the defendant her constitutional and statutory *601 right to a "speedy trial", constitutes "good cause". The fallacy of this argument is quickly noted, for if such an excuse is "good cause", then, wherever there is a congested civil docket, the trial court by setting civil cases in advance of criminal cases may hold a defendant in prison on a nonbailable offense until released by death, and thus deny our own definition of a "speedy trial" under the constitution. "A speedy trial is one conducted according to fixed rules, regulations, and proceedings of law free from vexatious, capricious, and oppressive delay created by the ministers of justice". Johnston v. Circuit Court, Mult. Co., 140 Or 100, 103, 12 P2d 1027. [Italics added].
My reasons for adhering to the views of this court as expressed in our former opinion may be summarized by quoting an excerpt from State v. Kuhn, 154 Ind 450, 453, 57 NE 106, 107, which reads as follows:
ROSSMAN and TOOZE, JJ., concur in this opinion. | 20b0f825e0540726b7d6cb7a6ef0e52660e12eabe06855ba05633dcc868d7768 | 1954-06-17T00:00:00Z |
59055e6d-fd63-421c-af92-938e78c30e44 | Butts v. Butts | 200 Or. 638, 267 P.2d 1104 | null | oregon | Oregon Supreme Court | Modified March 17, 1954.
David M. Spiegel, of Portland, argued the cause for appellant. On the brief were Lenske, Spiegel, Spiegel, Martindale and Bloom, of Portland.
Henry A. Buehner, of Portland, argued the cause for respondent. On the brief were Yokom and Campbell and Schwenn and Brink, all of Portland.
Before LATOURETTE, Chief Justice, and WARNER, LUSK and TOOZE, Justices.
MODIFIED.
LATOURETTE, C.J.
Plaintiff was granted a divorce from her husband on August 19, 1952. The decree contained a provision awarding to the defendant plaintiff's interest in partnership property belonging to the parties. This *639 the court had no authority to do. Polanski v. Polanski, 193 Or 429, 238 P2d 739.
We cannot consider the other matters raised on the appeal for the reason that there is no transcript of testimony before us.
The decree will be modified deleting from the same that portion awarding to the defendant the plaintiff's interest in the partnership property aforesaid.
Costs to the plaintiff. | d851c7696d02c32d2a9affd0580a567f37baa6cd4fb61af8b2a6ffc3d94fbdf1 | 1954-03-17T00:00:00Z |
dfe4efcd-b117-4798-b941-f7c1e642b134 | Praggastis v. Clackamas County | 305 Or. 419, 752 P.2d 302 | null | oregon | Oregon Supreme Court | 752 P.2d 302 (1988)
305 Or. 419
Kay PRAGGASTIS, Petitioner On Review,
v.
CLACKAMAS COUNTY, a Municipal Corporation, Respondent On Review.
CC 84-3-107; CA A41362; SC S34531.
Supreme Court of Oregon, In Banc.
Argued and Submitted January 19, 1988.
Decided March 29, 1988.
*303 Cynthia L. Barrett, Portland, argued the cause and filed the petition for petitioner on review.
Miles A. Ward, Asst. County Counsel, Oregon City, argued the cause and filed a response to the petition for respondent on review.
JONES, Justice.
The question we address is whether a county will be protected by judicial immunity *304 when the county is sued under the Oregon Tort Claims Act (OTCA), ORS 30.260 to 30.300, for the alleged negligence of an employee of the county clerk's office, serving as a clerk of the circuit court, when the clerk does not docket a dissolution decree incorporating a property settlement agreement because of existing instructions from the presiding judge of the county.
Plaintiff alleged that: "Defendant, acting through its agents and employees in the course and scope of their business, entered the decree Dissolving Marriage, but failed to docket the judgment," resulting in financial loss to the plaintiff. The trial court directed a verdict for defendant on the grounds that "[t]he `Decree Dissolving Marriage' * * * did not constitute a Judgment" and that "Defendant is not liable to plaintiff for damages since all the actions taken by defendant's employees were solely at the direction and instruction of Circuit Court judges, who are immune from liability for acts taken within the scope of their judicial duties and functions; the immunity of the Circuit Court judges extends in this case to defendant's agents and employees." The Court of Appeals affirmed on the ground of judicial immunity. Praggastis v. Clackamas County, 87 Or. App. 378, 742 P.2d 669 (1987). We affirm the decision of the Court of Appeals.
On June 1, 1979, Circuit Judge Patrick Gilroy signed a decree dissolving the marriage of Kay Praggastis and James Praggastis. The decree contained the following paragraph:
When the lawyer for Kay Praggastis (plaintiff) presented the decree and the attached property settlement to the County Clerk of Clackamas County on June 4, 1979, the deputy clerk who received the documents stamped "FILED" on the front page of the decree and made some unidentified notation in the Register of Actions.[1] The deputy clerk did not docket the decree as a judgment in the judgment docket book because she had been instructed to docket only documents which specifically contained language identifying the document as a judgment.[2] Plaintiff discovered the absence of a docketed judgment in 1982 when plaintiff sought the assistance of "collection specialists," who discovered that plaintiff's former husband's obligation did not appear on title company abstracts. Plaintiff claims that when plaintiff's former husband filed for bankruptcy in November 1982, his other creditors were able to defeat plaintiff's claim. Husband claimed debts of $11,960,943.50 and assets of $2,400 in the bankruptcy proceedings.
*305 Plaintiff's complaint alleged that defendant's employees negligently failed to docket her dissolution decree as a judgment against her former husband in accordance with ORS 18.320, which provided:
Plaintiff alleged that as a consequence of this failure to docket, she was damaged in the amount of $100,000.
At the time the issues in this case arose, official acts of county clerks were governed by the following statutes:
ORS 7.010(1):
ORS 7.020:
ORS 7.030:
ORS 7.040(1):
ORS 18.030:
The chief circuit court clerk for Clackamas County described the procedure in effect in 1979 for filing dissolution documents:
The alleged source of plaintiff's harm was the clerk's failure to docket the judgment. Plaintiff argues that ORS 18.320 creates a ministerial duty to docket judgments, which was breached by defendant's employee. Plaintiff argues that because this was a ministerial duty, and because the clerk in question was an employee of the elected county clerk, the doctrine of judicial immunity does not apply.
In 1979, the only statutory direction for entry of judgment or decree proceedings was found in ORS 7.030, directing the clerk to enter the proceedings in the journal.[4] ORS 18.320 assumes entry in the journal as a predicate for docketing the judgment. ORS 18.320 directs the clerk to docket the judgment "[i]mmediately after the entry of judgment," which we assume means entry in the journal. As we stated at the outset, the question before the court is not whether a clerk failing to docket a judgment has breached a ministerial duty. The question is whether a clerk who did not docket a decree of dissolution as a judgment in the judgment docket under previous orders from the presiding judge of the court not to do so is protected by judicial immunity. In order to answer that question, we must decide whether the presiding judge had authority to so direct the clerk.
This court has recognized that a clerk who negligently fails to docket a valid judgment has failed to perform a statutorily directed duty, for which the clerk may be liable. Esselstyn v. Casteel, 205 Or. 344, 286 P.2d 665 (1955). Esselstyn involved a divorce decree and involved an allegation that the clerk "failed and neglected to docket the said decree in the judgment docket of Umatilla County at the time it was entered or at any time thereafter." 205 Or. at 349, 286 P.2d 665. In Esselstyn, this court held that, despite the fact that the decree called for a property settlement to be made in installments, it was a judgment entitled to be docketed, and the failure to docket the judgment could have been the cause of the plaintiff's damages; therefore, the court ruled, the plaintiff's complaint should not have been stricken.
Esselstyn, however, does not decide this case. Immunity was not raised as a defense *307 in Esselstyn. Further, Esselstyn was based on pleadings of negligence. In the present case, the directed verdict was based on the undisputed testimony of the clerk and her supervisors that the decision not to docket the decree was based on the standing orders of the presiding judge.
The common law has long recognized that some public officials should be immune from civil actions for some of the actions taken in the execution of their public employment. Judicial immunity has long been a part of the immunities afforded public officials, being mentioned in the Book of Assizes, 27 Edw. III, pl. 18 (1354). The doctrine of immunity for acts performed by a judge acting within the court's jurisdiction has been recognized in this country since at least Randall v. Brigham, 74 U.S. (7 Wall.) 523, 19 L. Ed. 285 (1868).
This court recognized the existence and the limitations on the doctrine of judicial immunity in Shaw v. Moon, 117 Or. 558, 245 P. 318 (1926). The common law recognized that there is a public good to be gained from the principled and fearless decision-making of judicial officers freed from concern over suits by disappointed litigants. To gain this good, it is necessary to cloak judicial officers with immunity from civil liability for their acts, so long as these acts are within the jurisdiction of the officer. There is no serious question in this case that if the judge had authority to direct the clerk not to treat as docketable judgments documents which did not have the word "judgment" in them, the judge would be immune.
Immunity for judicial acts extends not merely to judges. Other officials who are performing acts associated with the judicial process may be protected as well. Watts v. Gerking, 111 Or. 641, 222 P. 318, 228 P. 135 (1924). This court has indicated that the common-law immunity for judicial and quasi-judicial acts is part of those immunities preserved for discretionary acts under the OTCA, ORS 30.265(3).[5]
Judicial immunity depends on the performance of a judicial function. When such judicial functions are performed by a public officer other than a judge, the immunity is often referred to as quasi-judicial immunity, but this is a distinction of name and not a distinction of immunity. Watts v. Gerking, supra; see also Imbler v. Pachtman, 424 U.S. 409, 423, 96 S. Ct. 984, 991, 47 L. Ed. 2d 128 (1976). Judicial immunity is granted or withheld on the basis of the nature of the function being performed, and not on the basis of the office. Shaw v. Moon, supra; see also Forrester v. White, ___ U.S. ___, 108 S. Ct. 538, 98 L. Ed. 2d 555 (1988).
Several factors are commonly examined to determine if a particular duty can be considered judicial or quasi-judicial for the purpose of extending immunity to the official performing the action. These factors include whether the official's actions are functionally comparable to judicial actions or involve decisions normally performed by judges in their judicial capacity, whether the action depends on legal opinions or discretionary judgments comparing the facts of a present situation with general legal questions, and whether the acts in question are primarily concerned with the official's role as a judicial or quasi-judicial officer. See Ashbrook v. Hoffman, 617 F.2d 474 (7th Cir.1980); Daniels v. Kieser, 586 F.2d 64 (7th Cir.1978), cert. den. 441 U.S. 931, 99 S. Ct. 2050, 60 L. Ed. 2d 659 (1979); Wilkinson v. Ellis, 484 F. Supp. 1072 (E.D.Pa. 1980).
As with all other officers who are associated with the judicial branch, clerks *308 are not always immune from the consequences of their acts. Where the clerk has caused harm through simple oversight or neglect in performing a non-judicial, ministerial act, liability may lie. Thus, for example, this court has held that where the clerk failed to enter an order vacating a judgment for punitive damages after it was delivered to the clerk by the judge who signed the order, the clerk was properly held to be liable for harm to the plaintiff. Charco, Inc. v. Cohn, 242 Or. 566, 411 P.2d 264 (1966). Where the clerk neglected to notify a party as to the date of entry of judgment, the United States Court of Appeals for the Fifth Circuit held that the clerk was not qualified for absolute immunity because the actions were routine functions of the office. Williams v. Wood, 612 F.2d 982 (5th Cir.1980). Where the clerk was under a statutory duty to docket a judgment, the clerk might be liable for failing to docket the judgment for two or three days. Maddox v. Astro Investments, 45 Ohio App.2d 203, 343 N.E.2d 133 (1975). Further, a clerk might be liable where the clerk recorded the payment of a fine but failed to recall a warrant for the plaintiff's arrest. Cook v. Topeka, 232 Kan. 334, 654 P.2d 953 (1982).
All these decisions were based on the clerk's failure to perform a statutory duty. Failure to perform a statutory duty which does not involve discretion in making policy decisions will not entitle the public officer to immunity. Bradford v. Davis, 290 Or. 855, 865, 626 P.2d 1376 (1981). In the present case, the clerk was directed by statute to enter any judgment in the journal at the direction of the court, and then directed by statute to docket any judgment in the judgment docket. The clerk has a ministerial duty to docket any judgment. But the duty to enter a judgment in the journal or its equivalent is a separate duty, and it is upon this duty that the existence of judicial immunity turns.
Clerks may derive an immunity from their performance of actions at the direction of the court. For this immunity to exist, the clerk must be acting at the direction of the court in carrying out an authorized judicial function. That the actions in question are "ministerial" in nature, or are performed at the direction of a statute, does not exclude the possibility of immunity. A clerk "may receive immunity in his own right for the performance of a discretionary act or he may be covered by the immunity afforded the judge because he is performing a ministerial function at the direction of the judge." Waits v. McGowan, 516 F.2d 203, 206 (3d Cir.1975); see also Kermit Constr. Co. v. Banco Credito Y Ahorro Ponceno, 547 F.2d 1 (1st Cir.1976). Clerks who have followed the direction of the court in making decisions which they are also directed by statute to perform have been held immune because they were following the directions of the court. See, e.g., Tarter v. Hury, 646 F.2d 1010 (5th Cir.1981); Lockhart v. Hoenstein, 411 F.2d 455 (3d Cir.), cert. den. 396 U.S. 941, 90 S. Ct. 378, 24 L. Ed. 2d 244 (1969); Yamamoto v. Santa Cruz County Bd. of Supervisors, 124 Ariz. 538, 606 P.2d 28 (1979).
This court recognizes the general principle that employees who are following the explicit orders of their superiors who have exercised discretionary authority in making such decisions will not be answerable for performing their duty.
The Court of Appeals decided this case on the grounds that judicial immunity shields the clerk when acting under the direction of the court. The Court of Appeals noted:
The Court of Appeals relied on State ex rel. Tolls v. Tolls, 160 Or. 317, 85 P.2d 366 (1938). In Tolls, this court interpreted the 1930 code, which contained language identical to the language at issue in the present case.[6] In Tolls the court recognized that a judge acts judicially when ordering a clerk to docket a judgment, that the clerk has no discretion to disobey the judge's instructions, and that the clerk acted improperly when the clerk sought advice of county counsel. Acting upon the advice of county counsel and fearing liability for docketing a void order, the clerk in Tolls refused to obey a trial court order to docket as a judgment an "order" in a divorce case. The clerk was held in contempt. This court affirmed the order of contempt even though the court agreed that the "order" did not constitute a judgment. Writing for the court, Justice Lusk observed that the clerk is a "mere arm of the court" and is subject to the control of the court in the performance of his or her duties. 160 Or. at 332, 85 P.2d 366. The Court concluded that, given the relationship between clerks and the courts they serve, permitting the clerk to question an act of the court "when acting judicially" would be "intolerable." Id. at 334, 85 P.2d 366. "A due regard for the dignity and authority of the office of judge and considerations of expediency and public policy demand that no such doctrine should be announced." Id. This court recognized in Tolls that determining what documents are to be docketed is a part of the judicial process and that when a judge gives directions in that regard, the judge acts "judicially."
As Tolls made clear, the process of docketing judgments is a part of the judicial process and requires the clerks to make certain quasi-judicial determinations as to what documents coming out of the courts are, in fact, docketable "judgments," and thus entitled to be docketed. Although ORS 18.320 provides that "[i]mmediately after entry of judgment in any action the clerk shall docket the judgment in the judgment docket * * *," the judgment docket is designed for the recording of money judgment information. The information to be recorded (e.g. judgment debtor, judgment creditor, amount of judgment, see ORS 7.040), is relevant only to money judgments. If only money judgments are to be placed in the judgment docket, the clerk of the court must determine upon examination of a document coming out of court whether that document is a docketable judgment. *310 The clerk must determine whether a given document constitutes a "judgment" or something else, and, if it is a judgment, whether it requires docketing.
The legislature has expressly provided that the entry of judgments is a function under the direction of the court, and in so doing has apparently recognized that these duties constitute a judicial function that is part of the judicial process. Although the statutes pertaining to "entering" and "docketing" judgments are separate and may imply separate legal duties, this court has decided that the legislative design was to have the entry and docketing of judgments be part of the judicial process. Tolls, supra, 160 Or. at 334, 85 P.2d 366. We are bound by the doctrine of stare decisis in interpreting these statutes. See State v. Loyer, 303 Or. 612, 614 n. 2, 740 P.2d 177 (1987); State v. White, 303 Or. 333, 348, 736 P.2d 552 (1987). The effect of the legislature's language providing that the clerks be subject to the direction of the court is that the clerks are deemed to be acting at the direction of the courts at all times with respect to the entry and docketing of judgments. Thus, with respect to those functions, the clerk is acting under the court's direction as a matter of law.
In this case Judge Hammond decided what constitutes a docketable judgment and, even if he were wrong, his decision is cloaked with immunity. Even when a judge improperly decides that an order should be docketed as a judgment, the clerk must follow the orders of the judge. See State ex rel. Tolls v. Tolls, supra. Here, the opposite is true. If the court tells a clerk that a document is not a docketable judgment and should not be docketed as such, the clerk must follow the court's orders, be they right or wrong.
The language in ORS 18.030 specifying that entry of judgments shall be subject to the direction of the court does not necessarily contemplate individual direction in each case. The proper authority issued a directive according to the statute and this order was carried out. The fact that the order was repeated or approved by subsequent judges demonstrates the continuing effect of the policy.[7]
In directing that the clerks should not docket any papers except those that were clearly specified as judgments and contained the requisite information, whether correctly or not, the presiding judge was exercising a responsibility conferred on the court by statute.[8] In following that directive, the clerk was performing the clerk's responsibilities as directed by the statute. Because these directions were given under statutory authority in an exercise of judicial discretion, the clerk is immune from liability. Under the provisions of ORS 30.265(2),
We conclude that it was proper for the trial court to direct a verdict in the present case once the evidence, never disputed by plaintiff, established that the clerk was following the statutorily authorized orders of the presiding judge. The decisions of the Court of Appeals and the trial court are affirmed.
[1] At trial, the chief clerk of the court testified:
"A I couldn't make a copy of the register of actions for this case because those have been microfilmed and it's on microfiche. I did make a copy of the register of actions page for this suit and I do have that with me if you want to compare that."
The copy apparently was never offered or received in evidence.
[2] The testimony at trial from the chief judicial clerk revealed that the policy was established by the presiding judge some years before the facts in this trial. The chief clerk described the situation:
"I know it was when Judge Hammond was presiding and I don't remember the case either, but I do know that I went to Judge Hammond and he said, `You are not attorneys. You are not required to interpret what is meant by the attorneys. If it does not specify if it doesn't definitely say judgment, you do not docket it.' So we just carried that through and that was the policy that we used at all times."
Earlier, the same witness had elaborated on the reasons behind the policy:
"Q. Would you tell the jury what instructions you had been given by the judges?
"A. That a judgment order definitely needs to state one person has judgment against another person. That is because of the requirement with the statute there has to be a judgment creditor, a judgment debtor, a face amount, and the date of the entry."
[3] Curiously, the record reveals that Clackamas County did not keep a separate journal as mandated by ORS 7.010(1), but instead kept only a register of actions and a judgment docket. In testifying during the trial, the clerk who originally handled the dissolution decree and attached property settlement in this case described her actions and the Clackamas County system:
"Q. * * * You received this document on June 4th?
"A. Yes.
"Q. And you were the person who date stamped it in?
"A. Yes.
"Q. What other steps did you take with regard to this decree dissolving marriage?
"A. I entered it in the register of actions and then I would have read through it to see if there were any judgments that needed to be entered in the judgment docket.
"Q. What next step would you have taken after you'd read through it?
"A. If there were anything that needed to be picked up, I would have entered it in the judgment docket. If there was anything that needed to go over to child support, I would have given them a copy of this and then I would have filed it away in the case.
"Q. Reviewing the document to refresh your memory, what steps did you take in that case with regard to the decree dissolving marriage?
"A. On this I read through it and read through the decree. I read through the property settlement because it states in here that it is incorporated into decree. I read through it to see if there were any specific judgments in here and at that time I would have read through it and determined that there was not.
"Q. What were you looking for when you went through the decree and property settlement agreement?
"A. I was looking specifically for a statement that would have said one party will have a judgment against the other." (Tr 187-88.)
[4] The present ORS 7.020 requires that judgments be entered in the register.
[5] See, e.g., Stevenson v. State of Oregon, 290 Or. 3, 619 P.2d 247 (1980), and McBride v. Magnuson, 282 Or. 433, 578 P.2d 1259 (1978), which have cited and relied upon several pre-OTCA cases, including Smith v. Cooper, 256 Or. 485, 475 P.2d 78 (1970) (distinguishing immunity for "discretionary and judicial acts" from immunity for ministerial acts); Utley v. City of Independence, 240 Or. 384, 402 P.2d 91 (1965) (recognizing that the doctrine of judicial immunity does not extend to actions wholly outside a judge's jurisdiction); and Watts v. Gerking, 111 Or. 641, 222 P. 318, 228 P. 135 (1924) (judicial immunity extends to prosecutors sued for malicious prosecution).
[6] While other language in the relevant statutes has changed, the language of greatest concern in the present case and in State ex rel. Tolls v. Tolls, 160 Or. 317, 321, 85 P.2d 366 (1938), remains the same. As did ORS 18.320 in 1979, section 2-1601 of 1 Oregon Code Annotated (1930) states "[i]mmediately after the entry of judgment in any action the clerk shall docket the same in the judgment docket." Nothing in this section mentions that this shall be done at the direction of the court. As did ORS 18.030 in 1979, section 2-1501 of 1 Oregon Code Annotated (1930) provides:
"All judgments shall be entered by the clerk in the journal, * * *.
"In the entry of all judgments, except judgments by default for want of an answer, the clerk shall be subject to the direction of the court."
[7] We do not deal in this opinion with situations involving inconsistent or conflicting orders to clerks from different judges, or with situations when a clerk does not or cannot obtain a judge's direction on docketing.
[8] ORCP 70 A now requires that "[e]very judgment shall be in writing plainly labeled as a judgment and set forth in a separate document." | 244891c2bf80f233b9c4ff1a1ed5e86457e0ee55f7600a4d201ee389ccf6914f | 1988-03-29T00:00:00Z |
33d456aa-45af-4686-aae0-2468212703c7 | Newton v. Pickell | 201 Or. 225, 269 P.2d 508 | null | oregon | Oregon Supreme Court | Affirmed April 21, 1954.
*226 Ray Rhoten argued the cause for appellants. On the briefs were Rhoten, Rhoten & Speerstra, of Salem.
James O. Goodwin, of Oregon City, argued the cause for respondent. With him on the brief was Glenn R. Jack, of Oregon City.
Before WARNER, Acting Chief Justice, and LUSK, BRAND and TOOZE, Justices.
AFFIRMED.
WARNER, A.C.J.
The plaintiff Ida A. Newton brings this suit to set aside the deed hereinafter referred to as being a conveyance in fraud of her rights accruing under an antenuptial agreement made between her and her husband in 1947. From a decree favorable to plaintiff, the defendants appeal.
Plaintiff and William L. Newton were married on June 17, 1947. Marital difficulties led to their separation sometime in March 1949. This culminated in a suit for divorce wherein each party prayed for a decree; but the suit, after trial in August 1949, terminated in a dismissal. The separation, however, continued until Mr. Newton's death in February 1951.
Mr. and Mrs. Newton had each been married before, and each was the owner of properties accumulated prior to their union in 1947. The day before their marriage they entered into an antenuptial agreement as prepared by Mr. Newton's attorneys. The essential provisions of this agreement, in which plaintiff was first party and the decedent Newton was second party, insofar as they relate to the subject real property read as follows:
We have for the convenience of later reference numbered the foregoing paragraphs one through six, although that device was not employed in the instrument as executed.
No issue is raised as to performance on plaintiff's part under the agreement.
Long prior to and at the time of this marriage, Mr. Newton owned and occupied a parcel of residential property situated in West Salem, Polk county, Oregon. This is the parcel which is referred to in paragraph 5 above and which is the subject of the instant suit. The Newtons continued to make their home in the West Salem property until they acquired and thereafter occupied a place which they purchased in Salem, Marion county, Oregon. This Salem home was purchased with funds which each had deposited in the joint bank account referred to in the antenuptial agreement. *229 During the entire period from the date of his marriage to plaintiff until the date of his death, Mr. Newton received and retained such rentals as accrued from the West Salem property, notwithstanding the alleged delivery of the deed to his son Gerald Newton, hereinafter referred to.
It appears that on the 14th day of June, 1947, three days before his marriage to plaintiff and two days before the antenuptial agreement was signed by the parties, Mr. Newton executed a deed to the West Salem parcel in favor of his son, the defendant Gerald Newton. There was no consideration for this conveyance. The deed was not recorded until March 12, 1948, and was thereafter returned by the county recorder to the office of the attorneys who had prepared it for plaintiff's husband. Some time later, "about 2 1/2 or 3 months" prior to the divorce trial in August 1949, the deed was mailed to Gerald Newton, then in Tillamook, Oregon. He testified that prior thereto he had neither seen nor heard about the deed. Gerald now claims title to the premises by reason of that instrument.
It is the contention of the appellants that paragraphs 5 and 6, when read together, make it clear that the parties contemplated that any new home which they purchased would be substituted for any home jointly owned by the entireties. Under this construction of the contract, appellants claim that the purchase of the Salem property effected a substitution for the West Salem property and voided any claims that Mrs. Newton might have in and to the West Salem parcel, notwithstanding her substantial contribution to the purchase price of the Salem property.
We cannot accede to this construction. Paragraph 5 above is clear and unambiguous that "there shall *230 be excepted from the operation of this agreement the home * * * now belonging to the party of the second part [William Newton], and the party of the second part agrees to convey unto the party of the first part [plaintiff] an undivided one-half interest therein by the entirety". (Italics ours.)
1. The relationship between the parties to an antenuptial agreement is fiduciary in character if the agreement was entered into after the parties became engaged. Squibb v. Catching, 264 Ill App 499; 41 CJS 573, Husband and Wife, § 99. It is a confidential relationship wherein the parties are not dealing at arms' length. Lindey, Separation Agreements and Ante-Nuptial Contracts, p. 652.
In 26 Am Jur 889, Husband and Wife § 281, it is said:
2. The agreement between the Newtons gave rise to a trust between them as to the instant property, creating an equitable interest in the plaintiff with the legal title reposing in the decedent as trustee. "* * * Antenuptial contracts in regulation of the interest that each shall have in the property of the other then owned or subsequently to be acquired are favored, and will be enforced by imposing a trust on the property. * * *" 1 Perry, Trusts and Trustees 7th ed, 173, § 122. Among the many cases cited by Perry in support of the foregoing rule is Johnson v. Spicer, 107 *231 NY 185, 13 NE 753, 755, wherein the New York Court of Appeals makes this cogent statement:
The same thought finds expression in 3 Scott, Trusts, 2338, § 470, in this statement:
What then is the position of a grantee to the title to property which is the subject of an antenuptial agreement? The rule which operates either for or against him, according to the facts, in confirmation or rejection of his title so taken from one of the parties to the marital settlement is indeed a familiar one touching the title to all holders of title to property derived from a trustee. It is well stated in 4 Pomeroy, Equity Jurisprudence 5th ed, 102, § 1048:
Also see 2 Restatement, Trusts, 879, § 289; Scott, Trusts, 1598, 1600, § 289.
3. A trust having arisen with respect to the challenged title and the defendant Gerald Newton claiming title under a deed without consideration, it follows that he holds the same as a constructive trustee for the use and benefit of the plaintiff.
The decree will be affirmed. | e852fb9802bf3f359b1aa892cf3ca5cb617fb68536b7f361cacc82a0bc04f674 | 1954-04-21T00:00:00Z |
c4435a60-9521-4345-b529-544d9972fd4d | Lawrence Whse., Inc. v. Best Lbr. Co., Inc. | 202 Or. 77, 273 P.2d 993 | null | oregon | Oregon Supreme Court | Affirmed June 17, 1954.
Petition for rehearing denied September 15, 1954.
*80 Hugh B. Collins, of Medford, argued the cause for appellant. With him on the brief was Paul W. Haviland, of Medford.
Wilber Henderson, of Portland, argued the cause for respondent. With him on the brief were Henderson & Dickinson, of Portland.
Before LATOURETTE, Chief Justice, and ROSSMAN, LUSK, BRAND, TOOZE and PERRY, Justices.
AFFIRMED.
BRAND, J.
This is an action by the Lawrence Warehouse Company against The Best Lumber Co., Inc., arising out of agreements for the "field warehousing" of defendant's logs by the plaintiff. The transactions included a lease by the defendant to the plaintiff of certain premises on which the logs were to be stored, and the issuance of nonnegotiable warehouse receipts by the warehouse company upon the delivery of logs to the warehouse. The purpose of the arrangement was to enable the defendant to "warehouse" its logs with the plaintiff who, on authorization of the defendant, would issue nonnegotiable warehouse receipts in the name *81 of the First National Bank of Portland, thus affording to the defendant convenient collateral security for loans from the bank. Warehouse receipts were so issued totalling 3,913,720 feet, but the plaintiff alleges that on demand of the bank for delivery to it of the balance of the logs represented by the receipts, it was ascertained, as the logs were checked out, that there had been only 3,624,390 feet of logs delivered into said warehouse, resulting in an alleged shortage of 289,330 feet. Plaintiff alleges that the logs were of the value of $20 per thousand and that the plaintiff, being unable to deliver said logs, was obliged to pay the bank $5,786.60. The prayer is for judgment in that amount. A demurrer to the complaint was overruled. The court struck all affirmative matter from the answer and amended answer and the case was tried solely on admissions and denials of the second amended answer. Verdict and judgment were for the plaintiff in the amount prayed for and the defendant appeals, assigning 44 alleged errors. The defendant issued to the plaintiff certificates for logs totaling 3,913,720 feet, the certificate being in the following form:
*82 The plaintiff then issued to the bank warehouse receipts based upon the certificates for the same amount of logs.
The overruling of a demurrer to the complaint is assigned as defendant's "principal grounds for reversal". The complaint alleges: (1) An agreement by the plaintiff to warehouse logs for the defendant and to issue warehouse receipts therefor; (2) a lease by the defendant to the plaintiff of real property as a log-decking area; (3) the execution and delivery to the plaintiff by the defendant of its certificates (as set forth supra) for the purpose of inducing the plaintiff to issue warehouse receipts and as a basis therefor; (4) based on the certificates, plaintiffs issued its warehouse receipts to the bank on authorization of the defendant (the date, receipt number and footage represented by each receipt is set forth in the complaint); (5) that defendant borrowed more than $5,786.60 from the bank and gave the warehouse receipts as security therefor; (6) that thereafter and on or about the 1st day of April, 1950, The First National Bank demanded under said warehouse receipts the delivery to it of the balance of the logs represented thereby; that as the logs were checked out, it was ascertained that there had been only 3,624,390 feet of logs delivered into said warehouse and there was a shortage of 289,330 feet; (7) that the logs at that time were of the reasonable value of $20 per thousand and plaintiff, being unable to deliver said logs, was obliged to pay The First National Bank of Portland (Oregon), on or about April 12, 1950, the value thereof, viz., $5,786.60; (8) the plaintiff demanded and was refused reimbursement. While it is unnecessary for the determination of the issue raised by the demurrer to the complaint, we *83 will also set forth paragraph 6 of that instrument, which reads as follows:
It will be observed that the complaint, as a whole, is based upon the claim that there was a shortage of 289,330 feet in the logs originally delivered to the warehouse and that demand was made for reimbursement "for the shortage aforesaid", and that the prayer seeks recovery for the value of the alleged shortage in logs. It will also be observed that paragraph 6 of the complaint, supra, constitutes an indemnity agreement, not as to shortages in the amount of logs delivered, but as to loss or damage to logs which were delivered.
Counsel for plaintiff in his opening statement made it perfectly clear that the issue in the case was, whether or not there was a failure to deliver to the plaintiff warehouseman the amount of logs specified in the certificates issued by the defendant. From the opening statement we quote:
1, 2. The inclusion of paragraph 6 introduces an element of confusion in the complaint and raises some doubt as to the theory of the plaintiff. But we think the complaint was not vulnerable to attack by general demurrer. Under the statutory mandate "In the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed, with a view of substantial justice between the parties." ORS 16.120. Stotts v. Johnson and Marshall, 192 Or 403, 234 P2d 1059, 235 P2d 560. What was said by this court in Lytle v. Payette-Oregon Irr. Dist., 175 Or 276, 293, 152 P2d 934, is particularly pertinent here. We quote:
We construe the complaint as one based upon the claim that the defendant never delivered to the warehouse the full quantity of logs represented by the *85 certificates issued by it, by which it guaranteed that 3,913,720 feet had been delivered. Since plaintiff claims that it never received 289,330 feet and since it sought and was awarded the exact amount of the alleged value of that quantity of logs, it is in no position to contend that the complaint is based on an entirely inconsistent theory, namely, that it received the logs but that they were lost and that the defendant agreed to indemnify against loss or damage to logs stored. The insufficiency of the complaint as a cause of action based on the allegations of paragraph 6 supra is conclusively established by the fact that there is no allegation that plaintiff ever received any logs in excess of the amount delivered to the bank or that any of such logs were lost or damaged. As said in Medford v. Pac. Nat'l. Fire Ins. Co., 189 Or 617, 627, 219 P2d 142, 222 P2d 407:
The certificates issued by the defendant guaranteed that a certain quantity of logs had been delivered to the warehouse. They constituted promises that the facts stated in them were true and if not true that defendant would compensate the promisee for the damage proximately caused by the untruthfulness thereof. The case is covered by the rule set forth in the Restatement of Contracts:
A provision of our statute points toward the same conclusion:
The agreement set forth in paragraph 6 of the complaint did not, in our opinion, guarantee against any loss except loss or damage to commodities stored in said premises and damage suffered as a result of defendant's occupancy of the premises. We cannot accept the contention that the only loss mentioned, namely, the loss caused by the necessity to make good on account of the alleged log shortage, was a loss "as a result of its (the plaintiff's) occupancy of the premises". The guarantee in paragraph 6 of the complaint must be treated as surplusage so far as the question of demurrability of the complaint is concerned.
3-5. The defendant relies up the proposition that "Where it is apparent on the face of the complaint that proof thereof would violate the parol evidence rule, the complaint is subject to general demurrer. Webster v. Harris, 189 Or 671, 222 P2d 644". It then adds that a warehouse receipt is subject to the parol evidence rule. The case cited is not in point. It is sufficient for us to say that proof of the breach of *87 a written contract is not a violation of the parol evidence rule. The defendant contends in substance that the complaint fails to show that the plaintiff was legally liable to the bank and therefore that plaintiff was a mere volunteer in making payment to the bank on account of the log shortage covered by the warehouse receipt. It is argued that the plaintiff, if sued by the bank, could have set up a defense of nonreceipt of the logs on a theory that the assignee of a non-negotiable chose in action is in no better position than the assignor with regard to defenses made by the obligor. The argument is unsound. The Uniform Warehouse Receipts Act provides in part:
A further provision of the same act, so far as pertinent here, reads as follows:
The complaint alleges and the evidence proved that the warehouse receipts were not issued to the defendant and then assigned to the bank. On the contrary, the nonnegotiable receipts were issued direct to the bank pursuant to the agreement between the plaintiff and the defendant. There was no occasion *88 for the plaintiff to allege or prove that the bank gave notice to the warehouseman of any assignment. The plaintiff, of course, knew that it had issued the receipt to the bank in the first instance. Under the statute, the bank was therefore the owner of the logs and the relationship of bailor and bailee did not exist between the plaintiff warehouseman and the defendant, as claimed in defendant's brief. The face of the complaint shows that the plaintiff was obligated to pay the bank. While the pleading is far from being a model, it sufficiently shows that the plaintiff did in fact pay the bank and would become entitled to reimbursement from the defendant on proving its case. There is nothing to show that the bank had any knowledge of any defense or counterclaim which could have been asserted against the defendant by the plaintiff. So far as the pleadings are concerned, the bank appears as a bona fide purchaser for value and the plaintiff was under obligation to reimburse the bank on account of its inability to deliver the logs represented by the warehouse receipts. We hold that the complaint was not vulnerable to demurrer and the first assignment is therefore without merit.
Assignments of error numbers 2 and 3 are as follows:
The third separate answer to the complaint consisted merely of an allegation that the defendant "was not authorized by law to become an insurer, surety, guarantor, *89 or indemnitor against the neglect or default of any other person, firm or corporation, nor against any loss to any other person, firm or corporation * * *." According to the complaint the defendant certified that it had delivered 3,913,720 feet of logs, whereas in truth there had been delivered only 3,624,390 feet. It sufficiently appears that the plaintiff issued warehouse receipts pursuant to the contract or guaranty of the defendant as to the amount of logs which had been delivered. The allegations of the defendant's third answer could not relieve it from liability if the allegations of the complaint were established by evidence.
In Roane v. Union Pacific Life Insurance Co., 67 Or 264, 135 P 892, this court said:
The third separate defense in the amended answer included the material previously stricken from the original answer and then added as a part of a single sentence the following:
The court committed no error in striking the third affirmative defense from the amended answer. Dunmire *90 Co. v. Oregon Mutual Fire Ins. Co., 166 Or 690, 114 P2d 1005; State ex rel v. Bishop, 109 Or 448, 127 P2d 736, 129 P2d 276.
The second affirmative defense in the original answer and the same defense in the amended answer were stricken on motion by the plaintiff. The second defense as stated in the amended answer was as follows:
We have serious doubt as to whether that answer should have been stricken. It alleges that all of the logs covered by the defendant's certificates were delivered to the plaintiff's warehouse, and alleges in substance either that the plaintiff was able to deliver them to the bank, or if not, that it was because they were lost through the plaintiff's own negligence. There was no inconsistency between this answer and the general denial of any shortage in the amount of logs delivered. The allegation that the plaintiff had received the logs and was able to deliver them is in substance merely a denial of the allegation of the complaint. The affirmative allegation is that the logs were lost through the plaintiff's negligence.
*91 6, 7. Under the provisions of ORS 16.400 the defendant could have challenged the correctness of the courts ruling upon the motion to strike and the ruling would then have been subject to a review upon the appeal, but an examination of the defendant's 44 assignments of error fails to disclose any assignment based upon the order striking the second defense. The propriety of that order is therefore not before us. In the present state of the record, the question of any alleged negligence on the part of the plaintiff in caring for logs delivered to it by the defendant will not be considered. The case was actually tried on the second amended answer which contained admissions and denials only. The complaint states no cause of action based upon the defendant's agreement to indemnify the plaintiff for loss of logs stored, as set forth in paragraph 6. The complaint not only fails to allege that any logs which had been stored were ever lost, but it affirmatively alleges that the 289,330 feet of logs which represents the difference between 3,913,720 feet covered by the defendant's certificates and 3,624,390 feet which were delivered to the bank were never delivered to nor stored with the plaintiff. The defendant requested the court to instruct the jury to disregard the allegations of paragraph 6 of the complaint and excepted to the failure of the court so to instruct, which is assigned by the defendant as error no. 35. The instruction should have been given. In assignment of error no. 34 the defendant objects to the failure of the court to instruct that the plaintiff had the burden of proof of the allegations of the complaint. The court did give such an instruction in general terms but in it the court read to the jury paragraph 6, together with other controverted portions of the complaint, and told the jury that the plaintiff had the *92 burden of proving the allegations of that paragraph. Thus an unnecessary burden was placed upon the plaintiff.
8. Assignment of error 36 complains of an instruction given by the court to the effect that a warehouseman is not liable for loss or injury to goods placed in his care unless the loss was caused by his failure to exercise the care which a reasonably careful owner would exercise. The instruction continued that if reasonable care was exercised and the loss occurred, and by reason of such loss the plaintiff was required to pay The First National Bank the sum of $5,786.60, the verdict should go for the plaintiff. This instruction also was erroneous since there was a denial in the complaint of any such loss and the entire shortage was explained by the allegation that the logs were never delivered. An adequate exception was taken.
9, 10. The confusion which permeated the trial of this case seems to have come from the desire of the plaintiff not to put all of its eggs in one basket and from the numberless ill-founded and sometimes captious objections urged by the defendant. We have read the entire transcript of testimony. We find in it no substantial evidence that there was any loss or damage to logs which had been stored with the plaintiff. There is no evidence that any logs were stolen. The defendant's evidence rises no higher than to suggest the possibility, and a remote one, that some person could have clandestinely removed some logs from the warehouse property. The evidence for the plaintiff persuasively indicated that no logs were removed from the warehouse except by the defendant. The only evidence having any remote connection with the claim of negligence was to the effect that the plaintiff had not maintained a watchman and that the area had not *93 been fenced. There was nothing to show that either a watchman or a fence was required in the exercise of reasonable care. The merits of the case were tried out upon the issue made by the complaint as we have construed that instrument. There was substantial evidence that the defendant had overscaled the logs and had issued certificates for more logs than were delivered to the warehouse. Upon the conclusive showing of the amount of the shortage, the jury were justified in finding that such shortage had been caused by the failure of the defendant to deliver to the warehouse the amount of logs covered by its certificates. The defendant put in no evidence by any person who had scaled the logs and on which scale the certificates were issued, and in fact no evidence of significance was presented by the defendant. This is a proper occasion on which to invoke the authority of Oregon constitution, Article VII (Amended), § 3 which provides:
We are of the opinion that the judgment was such as should have been rendered and it is affirmed, notwithstanding errors committed.
Neff, Frohnmayer & Lowry, of Medford, for the petition.
Henderson & Dickinson, of Portland, contra.
PETITION DENIED.
*94 BRAND, J.
The appellant has requested a rehearing before the full court. This is impossible. The case was heard by six of the seven justices of this court. Mr. Justice WARNER considered himself disqualified by reason of his former partnership with Mr. Wilber Henderson during the time that the firm was representing the Lawrence Warehouse Company. He is still of the opinion that he should not sit in the case. The decision of the case was unanimous on the part of the judges participating therein and we now adhere to that decision. In denying the motion for a rehearing we deem it proper, however, to clarify one sentence of our former opinion. The defendant takes vehement exception to the following statement which we made concerning the relationship between the bank, the plaintiff and the defendant:
The appellant also still insists upon the proposition that our decision has in some way violated the parol evidence rule.
11. We did not say that as between the bank and the Best Lumber Company the former should be deemed to be the owner. Of course, as defendant asserts, the dealings between the bank and the lumber company constituted a security transaction. In our opinion this fact was clearly recognized. Speaking of the warehousing arrangement, we said:
As between the defendant and the bank, the logs were collateral security for loans, and the bank was not the owner. But as between the bank as holder of the warehouse receipts and the plaintiff warehouse company, the bank was in substantially the position of owner by virtue of the provisions of statute ORS 74.200 and ORS 74.420, cited in our opinion. The rights of the bank as holder of the nonnegotiable warehouse receipts were measured by the statutes. A nonnegotiable receipt is one in which it is stated that the goods received will be delivered to the depositor or to any other specified person. ORS 74.040. The bank was the "specified person." The parol evidence rule has no application. The bank innocently lent money to the defendant upon the security of the warehouse receipts. It did not seek to vary the terms of the receipts. It insisted upon its rights under those terms. One of those rights was to enforce the liability of the warehouse company for damages caused by the nonexistence of part of the goods covered by the receipts. ORS 74.200. The plaintiff recognized its liability and paid the bank the value of the logs which it could not deliver but which it was bound to deliver under its receipts.
We thought we had made it clear that, having paid the bank, the plaintiff bases its claim against the defendant upon the written certificate given to the plaintiff by the defendant and on which plaintiff relied in issuing the warehouse receipts to the bank. Again we say, the parole evidence rule has no application. Plaintiff asserts that it issued the receipts to the bank and was bound by them. Having been compelled to pay, *96 it seeks to recover from the defendant lumber company for loss suffered by reason of its issuance of the warehouse receipts in reliance upon defendant's certificate.
12. The legal theory now advanced by defendants seems to be that since the plaintiff warehouse company relied upon representations of defendant in its dealings with the bank, it is barred from asserting as against the defendant lumber company the fact that the representations of the defendant were, in a substantial particular, untrue, as found by the jury. There is no merit in such a theory. It was unnecessary for us to say that the bank was the "owner" of the logs and that statement may be disregarded. It had rights under the statutes cited which are incidents of ownership.
13, 14. In our original opinion we expressed doubt as to whether the second defense as pleaded should have been stricken. That was the defense which alleged in affirmative form, first, that defendant delivered the full amount of logs to the warehouse as shown by its certificates, and second, that if there was any shortage it was due to the negigence of the plaintiff warehouse company. On further consideration both allegations appear to be speaking denials couched in affirmative form. The plaintiff had the burden of proving an initial shortage. In alleging that all logs were delivered as represented, the defendant merely denied the plaintiff's allegation of shortage. As to the alternative claim that plaintiff had lost the logs through negligence, a similar situation exists. Since plaintiff had the burden of proving that there was an initial shortage in the amount of logs certified, the defendant was entitled under a general denial to offer any evidence which would rebut plaintiff's claim. Any evidence, whether of negligent loss by plaintiff or even of larceny by any one or by accident or act of God, *97 would tend to explain the discrepancy between the incoming scale and the outgoing scale of the logs and to rebut the plaintiff's claim that the full quantity was never delivered.
The defendant's answer was not one in the nature of a cross complaint for damages on account of logs lost by plaintiff. It was an attempt to plead facts which would rebut plaintiff's claim. The court permitted inquiry into the care exercised by plaintiff concerning the logs and instructed the jury that if they found a shortage and that such shortage was not due to the failure of plaintiff to exercise reasonable care, etc., the verdict should be for plaintiff.
We have again read the testimony and again we find that there was substantial evidence to sustain the plaintiff's claim that the logs were overscaled by the defendant and that the certificates given by the defendant to the plaintiff showed substantially more logs delivered to the warehouse than were ever actually delivered.
The first matter which the jury was entitled to consider was the fact that when the logs were checked out, there was less footage than the defendant had certified as having been checked in. The jury then had the duty to consider any evidence which would explain the discrepancy and lead to a conclusion that the logs were placed in the warehouse to the full extent shown by the original certificates but that something had happened to some of them afterwards. The jury were entitled to consider the discrepancy between the original certificates and the final checkout along with the other evidence in arriving at its verdict.
There was testimony that no logs were taken out of the warehouse except by trucks operating for defendant. There was testimony concerning a "check *98 scale" made by three employees of the plaintiff which indicated that the logs had been overscaled by the defendant. These men inspected the scale marks previously put upon the logs and compared their own scale with that shown by the marking on the logs. Contrary to the defendant's contention, we hold that the jury could find from the evidence that the marks on the logs were put on as a result of the original scale by the defendants. These circumstances coupled with what we consider to be the established discrepancy between the amount certified and the amount checked out, authorized the jury to find as it did. The only logical conclusion at which we can arrive from a reexamination of the evidence is that no more than 3,624,390 feet of logs were ever delivered to the warehouse by the defendant. We adhere to the opinion that the judgment was such as should have been rendered. To our mind the only possible explanation for the discrepancy, other than an original shortage in logs delivered, would be on the theory that the defendant itself removed more logs from the warehouse than the amount shown in the records of logs checked out. This is highly improbable and was not and could not well be claimed by the defendant to explain a known discrepancy.
The petition for rehearing is denied. | 194149e72b0c9ce31172bd75b10b68c351823a78b6975098c703257a60a3212a | 1954-06-17T00:00:00Z |
16ebeedf-bec2-4abc-8fd1-315ee45e0471 | Fischer v. Howard | 201 Or. 426, 271 P.2d 1059 | null | oregon | Oregon Supreme Court | Reargued March 17, 1954.
Reversed June 17, 1954.
*429 William Schroeder, of Vale, and Roy Kilpatrick, of Canyon City, argued the cause for appellant. On the brief were Lytle, Kilpatrick & Schroeder, of Vale.
Martin P. Gallagher argued the cause for respondent. On the brief were Gallagher & Gallagher, of Ontario.
REVERSED.
ROSSMAN, J.
This is an appeal by the defendant from an order of the circuit court which sustained a motion made by the plaintiff for a new trial. The action in which the challenged order was made was based upon two charges of assault and battery. The complaint (amended) averred that the defendant, on June 23, 1950, and again on July 29, 1950, assaulted and beat the plaintiff. For the purported assault of June 23 the plaintiff sought $100 special, $1,000 general, and $2,500 punitive damages. For that of July 29 he demanded $500 special, $7,500 general, and $5,000 punitive damages. The answer (amended), in addition to denying the assaults and the alleged injuries, pleaded self-defense.
Following is a copy of the verdict which the jury returned:
*430 The verdict bore the signatures of all twelve jurors. When the verdict was returned, counsel for both parties were present. Neither made any objection to the verdict nor asked that the jury be sent out again to express its verdict in a different form.
Based upon the verdict, the court entered a judgment which, after reciting the verdict, proceeded as follows:
Two days after the discharge of the jury and the filing of its verdict the plaintiff presented his motion for a new trial; it reads:
The plaintiff and the defendant lived upon adjacent tracts of land in Malheur County. Their two affrays, which they termed grapplings, stemmed from a dispute over water rights. They occurred upon, or near to, a road which separated the properties. Near at hand was an irrigating ditch the source of their misunderstandings and personal animosities. In the course of the first grappling, the plaintiff suffered a twisted neck, so he swore, which necessitated the services of a chiropractic physician. He paid the latter $25 and lost several days from his employment. Before the second affray was over, the rolling struggle had taken the participants into the irrigation ditch. The cooling effect of the water quickly ended the matter. According to the plaintiff, he suffered a fractured rib in the second encounter and lost one month from his employment. He paid the physician who treated the fracture $35. The wages which he lost due to the injuries of the second encounter amounted to $300 or slightly more.
The two grapplings were substantially alike. In each instance, the defendant came upon the scene empty-handed, but the plaintiff possessed a shovel with which he was removing a dam from the irrigation ditch. In each instance, after some preliminary maneuvers had taken place, the defendant grabbed the shovel, threw it away and then the struggle ran its course. The parties were evenly matched; each was a lightweight.
The testimony, as transcribed, covers 325 pages. In addition, there are several exhibits. Much of the time of the trial was consumed in the efforts of each *432 of the parties to prove that he, not the other, was entitled to the water in the ditch.
The plaintiff claims that the verdict upon the first cause of action is for him and follows that claim with an argument that, although the jury found for him, it failed to assess his damages. Reliance is had upon § 5-405, OCLA (ORS 17.425), which says:
Based upon that line of reasoning, it is claimed that the trial judge erred when he entered judgment upon the verdict which was returned upon the first cause of action.
The verdict upon the second cause of action is attacked by a different process of reasoning. Snyder v. Amermann, Jr., 194 Or 675, 243 P2d 1082, and Hall v. Cornett, 193 Or 634, 240 P2d 231, ruled that if a jury awards a plaintiff in a personal injury action the amount of his special damages, it must also award him general damages. It is claimed that the award in the second cause of action of $1.00 as compensatory damages is nominal only, and therefore inadequate in view of the fact that the jury sustained the plaintiff's claim for special damages.
In defense of the verdict and the resulting judgment, the defendant argues that the verdict was, in effect, for him and cites Snyder v. Portland Railway, Light & Power Co., 107 Or 673, 215 P 887. Proceeding with that proposition [that the verdict was virtually for him], he claims that the jury was under no duty to assess the plaintiff's damages. Further, he submits that the plaintiff waived his right to object to any informality or irregularity in the verdict when he *433 permitted the trial judge to discharge the jury without making any objection whatever to the manner in which the jury had expressed itself. The defendant calls attention to the fact that before the jury was discharged the plaintiff was fully apprised of the form of the verdict and that he had no more information concerning the verdict when he moved for a new trial than when the jury was discharged.
It will be noticed that the action under review arose out of an episode a physical encounter between two neighbors that any juror could readily understand. The case called for the application of no principles of law concerning physical encounters that were alien to the man in the street. As a result of a request made by one of the parties, the painstaking trial judge reduced his instructions to typewritten form and sent them with the jurors to the jury room. In language that any juror could readily understand, the instructions stated that if the jury found for the plaintiff upon the first, second, or both causes of action, it was the jury's duty to go on and assess his damages. They distinguished between compensatory, special and punitive damages. In language suitable for laymen, the instructions delineated the rules that govern the award of each of those classes of damages.
We have mentioned the fact that when the verdict was returned, counsel for both parties were present. The trial judge, after acquainting the parties with the verdict, inquired whether either wished to have the jury polled. Each replied in the negative.
Section 5-319, OCLA (ORS 17.355) says:
*434 Neither of the parties asked, before the jury was discharged, that it be required to correct any part of the verdict or that it "be again sent out." After the trial judge's inquiry as to whether or not anyone wished the jury polled had been answered in the negative, and no objection had been made to the verdict, the latter was filed and the jury was discharged.
When the previous decisions of this court which were concerned with verdicts similar to the one returned upon the first cause of action are examined without reference to the records in those cases, some appear to be in discord with others. Presently we will review all of our precedents and in so doing we will consult the records in the office of our clerk concerning some of the cases where resort to the file will be helpful.
Experience shows that, notwithstanding the efforts of trial judges to see that the jurors, witnesses and all others conform to the governing rules, irregularities sometimes occur. If, in such instances, counsel for the losing party, upon observing a departure from the governing rule, may remain silent but, nevertheless, later gain a new trial upon the very irregularity of which he was fully informed when he chose silence, his adversary will be put to expense, the time of the courts which is needed to keep their dockets abreast of demand will be subjected to strain, and the loser will get two bites at the cherry.
The foregoing convinces us that the rule which should control situations of the kind now before us is important. Cases presenting irregularities and informalities in verdicts are coming before us frequently. We shall, therefore, see whether our previous decisions, which the plaintiff claims are in discord, followed a *435 pattern and employed a rule which commends itself. Before turning to our precedents, we will spend a few moments with the rule which is generally employed.
In Browning et al. v. Smith et al., 139 Ind 280, 293, 37 NE 540, the rule is stated as follows:
And in Cowenhoven v. Ball, 118 NY 231, 234, 23 NE 470, 471, the New York court said:
In 39 Am Jur, New Trial, § 14, p 39, it is said:
The language just quoted states the rule applicable to the irregularities of many kinds that occur during jury trials notwithstanding the presiding judge's efforts to prevent them. The paragraph just quoted indicates that if counsel notices something untoward he must call it timely to the attention of the trial judge, for if he does not he may meet with a ruling that he waived his objection.
The following, taken from 64 CJ, Trial, § 916, p 1110, is applicable directly to irregular verdicts:
*437 Continuing, the same section says:
The same volume, at page 1188, § 978, says:
The following is taken from Busch, Law and Tactics in Jury Trials, § 599:
For excellent elucidation of the rule of practice which we are now considering, see Wigmore on Evidence, 3d ed, § 2350.
Evidently the practice which is described in the passages which we took from Busch and Corpus Juris had its beginning concurrently with the inception of trial by jury, for we observe that Thayer, A Preliminary Treatise on Evidence, says, at page 145:
Among the decisions which Busch cites in support of his statement is Northern Pacific Railway Co. v. Urlin, 158 US 271, 39 L ed 977, 15 SCt 840, wherein Mr. Justice Shiras, speaking for the unanimous court, said:
We now turn to the past decisions of this court which were concerned with verdicts containing irregularities or departures from orthodox form.
*439 In Schumacher v. Moffitt, 71 Or 79, 142 P 353, the decision, written by Chief Justice McBRIDE, declared:
Goyne v. Tracy, 94 Or 216, 185 P 584, was an action at law for money had and received, which was instituted in a justice of the peace court. The jury's verdict read: "We, the jury in the above-entitled action, find for the plaintiff." Before any judgment was entered upon the verdict, the defendant in the action, who became respondent when the cause reached this court, objected to the rendition of judgment in favor of the plaintiff, except for costs. The objection was overruled and the justice entered a judgment in favor of the plaintiff for the full amount of his demand, $213.05, together with costs. The defendant in the action (who later became respondent) thereupon sued out a writ of review. The circuit court sustained the writ. In affirming that court, our decision said:
The action of the circuit court, which remanded the the cause to the justice court for further proceedings, was affirmed.
It will be observed that in that case the verdict was incomplete. It afforded no basis for determining whether or not the jury had considered the amount *440 which should be awarded to the plaintiff. It will also be observed that the defendant directed attention to the incompleteness of the verdict before the entry of the judgment.
From Printing Industry of Portland v. Banks, 150 Or 554, 46 P2d 596, the following is taken:
Snyder v. Portland Railway, Light & Power Co., 107 Or 673, 215 P 887, was an action for damages based upon charges of negligence in which the injury to the plaintiff's property was substantial. The plaintiff's averments that the defendant was negligent were denied and the evidence upon the issue was in conflict. The jury returned a verdict for the plaintiff in the *441 sum of $1.00 upon which the circuit court entered judgment. Later the plaintiff moved for a new trial and, as shown by the record in our clerk's office, assigned as grounds: "Misconduct upon the part of the jury in awarding plaintiff only $1.00 damages * * * The verdict is against the law." The original record fails to disclose that plaintiff made any objection to the verdict when it was announced. It likewise fails to indicate that he requested that the cause be remanded to the jury. Plaintiff's counsel at no time denied that he was present when the verdict was returned, and this court evidently believed that the appeal required the court to do nothing more than construe the verdict. In construing the verdict, it ruled: "This verdict * * * was virtually a verdict for the defendant. By it the plaintiff was given one dollar more than he was entitled to." The decision reviewed the opinions of many other courts which interpreted in like manner similar verdicts.
The Snyder decision appears to be susceptible reasonably to the interpretation that a claimant to unliquidated damages who meets with a verdict for one dollar, and who wishes later to argue that the verdict is irregular or ambiguous, must avail himself, before the discharge of the jury, of the procedure authorized by § 5-319, OCLA, previously quoted. If he does not do so, but withholds his objections until he moves for a new trial, the issues presented by him will be confined to a construction of the irregular verdict.
Reynolds v. Kanzler, 126 Or 245, 269 P 230, was a proceeding in mandamus which was instituted in this court against the Honorable Jacob Kanzler, a judge of the circuit court. The plaintiffs who instituted the proceeding were a husband and wife, by the name of James and Minerva Reynolds, against whom another *442 couple, by the name of Richard and Mabelle Landis, had filed an action in the circuit court for the recovery of money. The facts which we will recount are taken, in part, from our opinion (Reynolds v. Kanzler) and, in part, from the record in our clerk's office. In the circuit court case of Landis v. Reynolds, the jury returned a verdict upon which Judge Kanzler refused to enter judgment. At that juncture the Reynoldses filed the proceeding in this court for a writ of mandamus which resulted in the decision now under review. Returning for a moment to the action in the circuit court (Landis v. Reynolds), we find the following: (1) the complaint averred two causes of action for damages in the unliquidated sums of $5,095.63 and $7,133.00; (2) the defendants filed an answer which put in issue the complaint's two causes of action and alleged five counterclaims aggregating $14,653.16; (3) all but $693.16 of the counterclaims were in unliquidated amounts; (4) a reply put in issue all of the counterclaims; (5) the cause was assigned to Judge Kanzler for trial; (6) the evidence upon all of the seven demands was in conflict; (7) at the conclusion of the trial, the jury returned two verdicts, one of which read as follows:
*443 The other verdict follows:
A trial order entered in the journal by Judge Kanzler, after reciting that the jury had returned the verdicts just quoted, continued as follows:
Later, Judge Kanzler denied the defendants' motion for the entry of judgment in their favor. At the same *444 time he "confirmed" the "declaration by the court of the mistrial" and ordered that "a new trial be and is hereby granted herein."
It will be seen from the order entered by Judge Kanzler that the Reynoldses were satisfied with the verdicts and moved for the entry of judgment upon them in their favor. When their motion was denied, they filed in this court the mandamus proceeding which we are now reviewing. It named Judge Kanzler as defendant, and, referring to the verdicts, demanded that he "enter a judgment thereon in favor of the defendants in said cause and against the plaintiffs therein in the sum of the difference between the amounts set out in said two verdicts, respectively, to-wit, the sum of One Hundred Twenty and 51/100 Dollars * * * or that you show cause to this court * * *."
The above shows that when the verdicts were read, counsel for all parties were present. While the jury was still in the box, the judge and counsel retired to chambers. If plaintiffs' [Landis'] counsel at that time objected to the filing of the verdict, moved that the cause be remanded to the jury or invoked in any way the procedure rendered available by § 5-319, OCLA, the order fails to disclose the fact. If the verdict was, in fact, conflicting and unintelligible, § 5-319, supra, afforded a simple and inexpensive means of overcoming the deficiency. In lieu of resorting to that means, a mistrial was declared.
The opinion of this court, which referred to the verdicts as findings, declared:
Then the decision quoted from the authority last mentioned the following:
In allowing the writ, we said:
The opinion deemed that the only question submitted for decision was whether or not the jury had expressed its findings with sufficient clarity. It found that the jury's findings that is, its verdict was understandable. In appraising the significance of that holding, it is useful to return to the verdict upon the second cause of action which read: "We find that plaintiffs * * * are entitled to recover of and from the defendants * * * damages in the sum of $ None." The second cause of action prayed for the recovery of $7,133. By comparing the verdict just quoted with the one returned in the case at bar upon the first cause of action, it will be noticed that there is no material difference between them.
McLean v. Sanders, 139 Or 144, 7 P2d 981, was based upon another verdict which was returned in a *446 trial over which Judge Kanzler presided. The McLean case was instituted by a young woman, nineteen years of age, in the district court against three police officers to recover compensatory and punitive damages upon a charge of false imprisonment. A jury in the district court returned a verdict in her favor for the sums sought. Upon appeal, the jury returned a verdict which read:
Judge Kanzler directed that the verdict be filed. Treating it as a finding for the defendants, he entered judgment that the plaintiff recover nothing. On the same day the plaintiff moved for a new trial. The motion was denied and the plaintiff appealed.
The opinion in the McLean case does not indicate whether or not counsel for the plaintiff was present when the verdict was returned. The brief filed by her counsel in this court stated: "The jury was discharged after rendering its verdict and no opportunity was afforded to have verdict corrected." The brief filed by the respondent did not challenge that statement and said nothing adverse to it. An examination of the file in the clerk's office, including a transcription of the oral arguments which were delivered when the case was presented to the court, shows that counsel for the plaintiff told this court: "In this case both counsel were in their offices when the jury returned and the judge did not notify them that the jury was in and discharged the jury and permitted counsel to enter judgment for defendants." Counsel for the defendants *447 did not challenge that statement. The decision of Department I, with one member dissenting, held that error was committed when the verdict was deemed in favor of the defendants and also when the motion for a new trial was denied. It expressed the belief that the situation was analogous to Goyne v. Tracy in which the verdict was: "We, the jury in the above entitled action, find for the plaintiff." It said:
Since the plaintiff in that case was denied her statutory right to be present when the verdict was received, and likewise her statutory right to move that the cause be remanded to the jury, in the event she believed that the verdict was irregular, she had not waived either of those rights. Obviously, a party who has not waived those rights is in a position to challenge a verdict received prematurely which is not free from ambiguity.
Although Mr. Justice RAND was the author of both the Snyder and the McLean decisions, the McLean opinion did not mention the one entered in the Snyder *448 case. As we have seen, there was no contention in the Snyder case that Snyder and his counsel were denied opportunity, before the discharge of the jury, to challenge the verdict or move that the cause be remanded to the triers of fact. It presented nothing but an issue of verdict construction. In the McLean case, the plaintiff was denied, by the premature action of Judge Kanzler, opportunity to move for a remand of the case to the jury so that a verdict free from irregularities would be returned. The two cases present that material distinction, and that fact possibly accounts for the omission of the McLean decision to mention the other.
1. Klein v. Miller, 159 Or 27, 77 P2d 1103, was an action for unliquidated damages which arose out of a collision of automobiles. The defendant filed a counterclaim. The verdict read as follows: "We, the jury * * *, find for the plaintiff and assess his damages at the sum of $ no dollars." The trial judge, after entering judgment for the defendant, sustained a motion made by the plaintiff for a new trial. His action in so doing was affirmed by this court but by a divided opinion. One justice, after referring to McLean v. Sanders, stated:
Another dissented. His dissenting opinion pointed out that when the verdict was received, counsel for the plaintiff and the defendant were present and that no motion was made that the jury should retire and *449 express its findings in any other way. From his dissent, it appears that when a request was made that the jury be polled, a polling occurred. We see from the circumstances just related that the Klein appeal presented a different situation from the one in the McLean case. Unlike the latter, counsel were present when the jury returned its verdict. Notwithstanding the fact that counsel were present when the verdict in the Klein case was received, the majority opinion, which was written by Mr. Justice KELLY, did not mention that fact. Likewise, it did not take notice of § 5-319, supra, which, as we have seen, reads:
Justice KELLY, apart from quoting briefly from McLean v. Sanders, supra, and citing Goyne v. Tracy, supra, depended upon a passage which he took from Abbott's Civil Jury Trials and decisions cited in the footnote to the passage. The quotation declares that a verdict must state specifically the amount awarded. It did not concern itself with the methods employed by courts for correcting, before the discharge of the jury, irregular and informal verdicts. In § 399 of the fifth edition of Abbott, it is said:
The Klein decision made no reference to that principle or any phase of it. It cited a Minnesota decision which *450 construed a verdict reading, "in the sum of None $", but overlooked Reynolds v. Kanzler, supra, in which, as we have seen, this court was confronted with a verdict expressed in substantially the same manner ("Damages in the sum of $ None"). And, likewise, overlooked Snyder v. Portland Railway, Light & Power Co., in which the verdict was for the sum of $1.00. Justice KELLY'S decision mentioned neither the Reynolds nor the Snyder decision. Concerning the Minnesota verdict, the opinion written by Mr. Justice KELLY said: "This verdict was construed by the Minnesota court to be a verdict for the defendant." It will be recalled that Reynolds v. Kanzler, in dealing with the verdict before this court in that case, held that the plaintiff was entitled to nothing upon the cause of action for which the jury gave him "damages in the sum of $ None." The Snyder decision, in construing the $1.00 verdict, said: "This verdict, however, was virtually a verdict for the defendant." Yet the Klein decision, after referring to the Minnesota opinion, said:
Plainly, the Klein decision was written oblivious of our own holdings. It failed to take note of pertinent precedents that came from our own pen and of a statutory enactment in our compiled laws. No previous decision of a court is entitled to persuasive effect when it displays disturbing infirmities.
Hall v. Cornett, supra, was based upon charges of negligence and averments that, as a result of the negligence, the plaintiff sustained a personal injury. The *451 complaint prayed for damages, partly special and partly compensatory. After the jury had retired for deliberation it returned to the courtroom. We now turn to the bill of exceptions on file in our clerk's office which gives us the following:
As he proceeded, Mr. Geddes, according to the bill of exceptions from which we have been quoting, called attention to § 5-319, supra, and declared that by virtue of it "the Court does have authority to instruct the jury to correct the verdict and eliminate the insufficiency." Shortly, as is indicated by the following excerpt *452 taken from the bill of exceptions, the trial judge ruled:
The above excerpts taken from the bill of exceptions indicate the manner in which counsel and the trial judge employed the procedure which stems from § 5-319, supra.
After the jury had been reinstructed it returned with a verdict upon which judgment was entered. Later, a motion made by the plaintiff for a new trial was sustained and the defendant appealed. For reasons which are immaterial to the issues now before us, our decision set aside the second verdict and vacated the judgment based upon it. Although the regularity of the procedure taken by the trial judge in connection with the first verdict possibly was not germane to the appeal, it is clear that that procedure met with no disapproval by this court. Our decision said in part:
Snyder v. Amermann, supra, which presented issues somewhat related to those in the present and the Hall v. Cornett cases, followed the decision of the latter.
2, 3. The foregoing completes the review of our prior opinions. It will be observed that all of them, with the exception of Klein v. Miller, can be reconciled upon the principle that if counsel was afforded opportunity (1) to be present when the verdict was returned, *454 and (2) to examine the verdict before the jury was discharged, but failed to challenge the latter's regularity or the clarity of its phraseology, the court will go no further than to construe the verdict; that is, to determine its meaning. In short, the court will believe that its function is confined to the one which was performed in Snyder v. Portland Railway, Light & Power Co., supra. Objections which urge irregularities and lack of proper form will be treated as waived unless they were voiced before the jury was discharged. Our decisions, with the exception of Klein v. Miller, conform to the procedure prescribed by § 5-319, supra, although they do not always acknowledge that the rule which they employed originated in that enactment. When reconciled in the manner just indicated, effect is given to § 5-319 and a simple rule of procedure is had which can be easily employed. The rule minimizes retrials. Any rule which obviates needless retrials renders the administration of justice more prompt and less expensive. The rule which we have distilled from our previous decisions does not reward with a new trial a party who sits mute when he should have spoken.
None of our previous decisions hold expressly that counsel must speak up when an irregular or informally expressed verdict is returned, but, since this court has often held that an attorney in a jury trial who becomes apprised of an irregularity must make timely objection or lose his right to complain, we know of no reason for permitting him to sit inert when he observes an irregularity or an informality in the verdict. He is an officer of the court and owes a duty to prevent the commission of error. As we have seen, the decisions of other courts which passed upon verdicts similar to the one which was returned upon the first cause *455 of action demanded that counsel make his objection before the discharge of the jury, under threat that he otherwise be satisfied with the ambiguous or informally expressed verdict.
4, 5. We are satisfied that when counsel has adequate opportunity, before the discharge of the jury, to familiarize himself with the verdict, but makes no objection to the filing of the verdict or moves that the cause be remanded to the jury, he cannot later, by a motion for a new trial, assail the verdict upon the ground that it is irregular, ambiguous or informal. His failure to have employed the procedure warranted by § 5-319, supra, constitutes a waiver upon his part of all objections which could have been made on account of irregularity, informality or ambiguity in the verdict. After the discharge of the jury, there remains nothing to be done except to construe the verdict. To the extent that Klein v. Miller, supra, is out of harmony with the conclusions just expressed, it is overruled.
We come now to a construction of the verdict which was returned in the instant action. In construing it, we deem it well to return to Snyder v. Portland Railway, Light & Power Co. So far as can be gleaned from the record, no objections were made to the reception of the verdict in that case and, therefore, this court confined itself to the task of ascertaining the jury's meaning. It held that the verdict, which was for the plaintiff in the sum of $1.00 only, "was virtually a verdict for the defendant. By it the plaintiff was given $1.00 more than he was entitled to." The reasons set forth in the opinion for the interpretation were so cogent and well fortified by authority they have persuaded other courts.
*456 In Reynolds v. Kanzler, supra, the verdict upon the second cause of action was virtually a counterpart of the verdict returned in the case at bar upon the first cause of action. The pertinent part read: "damages in the sum of $ None". This court did not hesitate to construe those words as a finding for the defendant.
From the foregoing we see that both Snyder v. Portland Railway, Light & Power Co., supra, and Reynolds v. Kanzler, supra, construed verdicts such as the one returned upon the first cause of action in the case at bar as virtually for the defendant.
We said that the holding in Snyder v. Portland Railway, Light & Power Co., supra, has been accepted as sound by other courts. We shall now take notice of three of the decisions which were influenced by the Snyder opinion.
Fairmount Glass Works v. Cub Fork Coal Co., 287 US 474, 77 L ed 439, 53 S Ct 252, held that it was not error for a trial court to deny a new trial when the jury returned a nominal verdict. Mr. Justice Brandeis, reasoning for the court, said:
The language is remarkably reminiscent of the phraseology in which the Snyder decision is cast. After the word "issues" where it appears the third time in the above excerpt there is a numeral calling attention to *457 a footnote which cites, among other decisions, Snyder v. Portland Railway, Light & Power Co.
Snyder v. Portland Railway, Light & Power Co., supra, turned the scales in Taylor v. Virginia Metal Products Corp., 111 Fed Supp 321. In that case, the plaintiff sought judgment against the defendant for the sum of $100,000 upon charges of libel. The answer denied the charges and submitted a counterclaim aggregating $97,030.95. The jury returned a verdict for the defendant upon the plaintiff's claim against it and, likewise, for the defendant in the sum of $1.00 upon the counterclaim. The decision construed the $1.00 verdict in the same manner as did Snyder v. Portland Railway, Light & Power Co., the verdict which was before us in that case. In so doing, the federal court quoted extensively from the Snyder opinion and from those of two other courts which had been influenced by the Snyder opinion.
In Haney v. Cheatham, 8 Wash 2d 310, 111 P2d 1003, the court cited Snyder v. Portland Railway, Light & Power Co. as sole authority for the following principle which the court embraced:
Snyder v. Portland Railway, Light & Power Co. has been cited many times by this court. Hall v. Cornett, *458 supra, quoted extensively from it. We are satisfied that it was correctly decided.
6-9. Every party to a jury trial has a right to a verdict which is not only just but which is free from irregularities and ambiguities. But in trial by jury many rights slip through the fingers of those who do not object when something less than perfect is tendered. The right to a verdict couched in proper form and free from ambiguity is one which may be lost through failure to protest when a verdict is presented that fails to conform to standard. Without resort to further analysis, we express the conviction that the verdict upon the first cause of action must be deemed one for the defendant, and that the plaintiff, by remaining silent when it was received, waived his right to present the contentions upon which the motion for a new trial is predicated. The circuit court erred when it sustained the part of the plaintiff's motion which granted a new trial upon the first cause of action.
We come now to the verdict upon the second cause of action. A copy of it appears in a previous paragraph. We have mentioned the fact that when the verdict was returned, counsel for both parties were present and that neither objected to the filing of the verdict. Likewise, neither moved that the jury be sent back to correct or clarify the verdict. It is the plaintiff, not the defendant, who manifests dissatisfaction with the verdict.
A preceding paragraph quotes the motion for a new trial which makes the plaintiff's sole attack upon the verdict. The opening paragraph of the motion submits the following charge: "misconduct of the jury in failing to award plaintiff substantial general damages."
*459 The purported misconduct is not divulged by an affidavit filed by the plaintiff. In fact, the motion is accompanied by no affidavit. The assumed misconduct consisted of nothing except the fact that the jury did not award to the plaintiff "substantial general damages." The plaintiff does not contend that the jury defied the court's instructions, and likewise does not contend that the verdict is out of harmony with an interpretation of the evidence which the jury could reasonably have taken. Let us pause for a moment upon the plaintiff's charge "failing to award the plaintiff substantial general damages." The plaintiff makes no complaint about the award of special damages. He swore that he paid a physician who attended to his fractured rib $35, that he lost a month's wages and that his rate of pay was $75 per week "take home pay." The jury awarded him $1.00 compensatory damages, and because it gave him no more than that he resorts to the charge of "misconduct".
Section 5-802, OCLA (ORS 17.610) says:
10. It is plain that the jury wanted the plaintiff to have no more than $37. It considered every demand which he made and, taking pen in hand, wrote its answers upon the form of the verdict which plaintiff's counsel had prepared. After the heading Compensatory Damages it wrote $1.00. That was its answer to his plea for compensatory damages. After the heading Punitive Damages it wrote $1.00, and after the heading *460 Special Damages it wrote $35. It is impossible to misunderstand the answers which the jury gave to the plaintiff's demand for damages. We are satisfied that when the verdict was read the plaintiff and his counsel fully understood that the jury wanted him to recover $37, and no more.
By reverting to the motion for a new trial, which is copied in a preceding paragraph, it will be seen that the motion, in addition to terming the jury's award to the plaintiff of only $1.00 compensatory damages as "misconduct", also refers to the jury's action in making that modest award as "arbitrary, and capricious, against the uncontradicted evidence and contrary to the instructions of the Court." Continuing, the motion for a new trial claims that the award of only $1.00 compensatory damages following the award of $35 "for medical expenses" was "inconsistent, and the result of prejudice and caprice, and as contrary to the uncontradicted evidence and instructions of the Court." We have now stated all of the grounds upon which the motion for a new trial was based. There are no others. In proceeding, we will have all of the charges in mind. All of them are based upon the same action of the jury; that is, its award to the plaintiff of only $1.00 compensatory damages.
When the verdict was returned with its award of only $1.00 general damages, the plaintiff and his counsel were accorded ample opportunity to examine the verdict. After acquainting themselves with the verdict and answering "no" to the trial judge's inquiry as to whether they wished the jury polled, they did not object to the filing of the verdict or move that the cause be recommitted to the jury. In short, they remained silent. It is clear that later, when they moved for a new trial, they had no more information about *461 the verdict and its terms than when they silently saw the verdict received and the jury discharged. In Mitchell v. Bruening, 139 Or 244, 9 P2d 811, this court affirmed an order of the trial judge which overruled a motion for a new trial which was based upon alleged misconduct of the jury. The decision said:
Other courts take the same view. We quote the following from 66 CJS, New Trial, § 62, p 189:
As we have seen, plaintiff and his counsel had complete knowledge of the so-called "misconduct" before the jury was discharged, but maintained their silence.
11. The claim of misconduct, as the plaintiff's brief indicates, is based upon an inference drawn by him that the jury either misunderstood the instructions given them by the trial judge or misapplied them. We deem it manifest that neither of those alternatives, if it occurred, constituted misconduct under our statute authorizing trial judges to grant new trials (§ 5-802, OCLA). At any rate, the plaintiff made no objection when the verdict was returned.
The above suffices to dispose of the charge of purported misconduct. We will now consider the other charges. We have quoted the motion and have summarized *462 its charges. We think it is fair to say that the plaintiff relies upon a contention that when the jury awarded him $35 as special damages it was bound to give him a substantial amount for purported pain and suffering. He cites Hall v. Cornett, supra, and Snyder v. Amermann, Jr., supra.
12. It is clear that the verdict upon the second cause of action is not void. In proceeding we shall constantly bear in mind the fact that this case is not concerned with a void verdict.
In disposing of the contentions which challenge the verdict which was returned upon the first cause of action, we stated the principles of law which govern irregularities and informalities. Those principles are equally applicable to the verdict which was returned upon the second cause of action, and therefore, we will not repeat them.
We see from what we have said that the verdict upon the second cause of action was similar to the first verdict which was returned in Hall v. Cornett, supra. When the verdict in this case was returned, the situation pertaining to the second cause of action was a counterpart to that which occurred when the jury in Hall v. Cornett filed into court with its first verdict. The plaintiff in this case, upon observing that the jury awarded him $35 special damages and only $1.00 compensatory damages, could have availed himself of the procedure which was employed in the Circuit Court for Douglas County when Hall v. Cornett was pending in that court; that is, he could have objected to the receipt of the verdict and could have moved that the cause be remanded to the jury with additional instructions. Grotton v. Glidden, 84 Me 589, 24 A 1008, is an illustration from another state *463 of the procedure which was employed in Hall v. Cornett, supra. That decision was based upon a verdict returned in an assault and battery case after the jury had returned an irregular verdict and the trial judge had recommitted the cause to the jury. The judgment upon the corrected verdict was affirmed. In Lawson v. Sitgraves, 299 Ky 545, 186 SW2d 182, the trial judge, upon observing that the verdict was for no more than the amount of the medical expenses, recommitted the cause to the jury with appropriate instructions. Thereupon a proper verdict was returned. The judgment entered upon it was affirmed.
But the plaintiff did not take the course which was employed in Hall v. Cornett, supra, Grotton v. Glidden, supra, and Lawson v. Sitgraves, supra. Likewise, although his motion for a new trial charges the jury with misconduct, he did not take the course which is exacted by Mitchell v. Bruening, supra. To the contrary, he kept his lips tightly sealed and permitted the trial judge to discharge the jury after he had ordered the filing of the verdict. Some days later, the plaintiff for the first time spoke up. Then he filed a motion for a new trial which charged the jury with misconduct.
13-15. Plainly, a litigant who wishes to present the contentions offered by this appeal must object promptly when he observes the irregularity or forfeit his right to object. Rights to object which have been waived cannot be reclaimed and revived by resort to a motion for a new trial. A litigant who meets with a verdict such as the one which was returned in this case or with verdicts such as those which were returned in Snyder v. Portland Railway, Light & Power Co., supra, and Hall v. Cornett, supra, should not have a choice to employ the procedure offered by § 5-319, supra, or, *464 on the other hand, keep still and later move for a new trial.
16. We are satisfied that when the plaintiff, after acquainting himself with the verdict, made no objections to its receipt and no motion that the cause be recommitted to the jury, he waived the objections now under analysis. Having waived them, they were unavailable as the basis for a motion for a new trial. The motion should, therefore, have been denied. Error was committed when it was sustained.
17. Contrary to the mandate of Art. VII, § 3, Constitution of Oregon, the plaintiff asks us to re-examine the facts and find that the verdict cannot be justified. The jury is the fundamental fact-finder in our system of jurisprudence. Van Lom v. Schneiderman, 187 Or 89, 210 P2d 461, 11 ALR 2d 1195. We have no power to re-examine its award.
We conclude that the order granting a new trial was unwarranted and was entered in error. The order is reversed and vacated.
LATOURETTE, C.J., TOOZE and PERRY, JJ., concur.
WARNER, J., concurs in the result.
LUSK, J., dissenting.
I dissent from the decision of the court as to the verdict on the first cause of action on the authority of Klein v. Miller, 159 Or 27, 77 P2d 1103, 116 ALR 820 (1938); McLean v. Sanders, 139 Or 144, 7 P2d 981 (1932); and Goyne v. Tracy, 94 Or 216, 185 P 584 (1919). This decision overrules not merely Klein, but all three of the cited cases. It holds that the verdict upon the first cause of action "must be read as for the defendant". Klein and McLean hold that in an action for the recovery of money a verdict which finds *465 for the plaintiff and assesses damages at no dollars is neither a verdict in favor of the plaintiff nor a verdict in favor of the defendant, and is in effect no verdict at all. 159 Or 29; 139 Or 147. Both decisions cite and rely on Goyne, which holds that a court is without authority to enter a judgment on a verdict which finds for the plaintiff without more. The action was in a justice of the peace court for money had and received. The justice entered judgment for the full amount demanded and costs. On writ of review the Circuit Court remanded the cause for further proceedings, and we affirmed. All three decisions are based ultimately on the statute, which is controlling and which, so far as material, reads as follows:
As recently as 1952, indeed, we reaffirmed the principle of these cases in Snyder v. Amermann, 194 Or 675, 679, 243 P2d 1082, when we said:
In the Klein and McLean cases we said that a verdict such as that now under consideration will not support a valid judgment because of its uncertainty; that it was impossible to ascertain from the verdict whether the jury intended to find for the plaintiff or the defendant. McLean reversed a judgment for the defendant entered upon the verdict. That is to say, the Circuit Court was reversed for doing the very *466 thing which the majority of this court now say should have been done in this case. Klein affirmed an order awarding the plaintiff a new trial. Klein (the only one of these three decisions now expressly overruled) is said to have been "written oblivious of our own decisions". The record is not harmonious to that assertion. McLean was heard and decided in 1932 by a department of the court. Klein was heard and decided in banc in 1938, and in that case, in the brief of the appellant (defendant in the Circuit Court), an effort was made to distinguish McLean. The court was also asked to re-examine the question decided in McLean, and the dissenting opinion of Mr. Justice ROSSMAN in that case, which cites Snyder v. Portland Ry., Light & Power Co., 107 Or 673, 215 P 887, was commended by counsel to the favorable consideration of the court. In the Klein case Mr. Justice ROSSMAN again dissented, and expressed with ability and learning precisely the same views which he now expounds for the majority in this case. The dissenting opinion cites Reynolds v. Kanzler, 126 Or 245, 269 P 230, and Snyder v. Portland Ry., Light & Power Co., supra, as authority for overturning what had theretofore been determined. The dissenting opinion also calls attention to the fact that counsel were present when the verdict was returned in the Klein case, and that the jury was polled, and no objection was made to the verdict, and that thereby "plaintiff waived his right to a verdict couched in any other form." 159 Or 35.
I respectfully suggest, therefore, that Klein was decided by the court with its eyes open and after there had been pressed upon it, not only by counsel but by a member of the court, the very arguments and authorities now employed to sustain today's decision, and that the doctrine announced in Klein and in McLean and in *467 Goyne is the law of this state, deliberately arrived at, and represents a deliberate rejection of the views of the majority in this case. This court has by no means been alone in the position it has taken upon this question. On the contrary, it has been one of a large and excellent company. Klein v. Miller is published in 116 American Law Reports with an annotation commencing at p. 828, upon the following subject: "Verdict which finds for party upon his cause of action or counterclaim for money judgment, but which does not state amount of recovery, or is indefinite in this regard, or which affirmatively states that he is entitled to no amount." At p. 829 the editors of ALR state that a verdict such as is described in the subject of the annotation "is not one on which a valid judgment can be entered", and to that statement are cited decisions from twenty-nine jurisdictions in this country and from England, including Klein v. Miller, Goyne v. Tracy and McLean v. Sanders. The decisions cited support the statement of the editors. In these circumstances the court might well heed the admonition of Mr. Justice McBRIDE in Wallace v. Portland Ry., L. & P. Co., 103 Or 68, 77, 204 P 147: "Courts should as a rule be reluctant to sweep away a precedent of long standing."
Reynolds v. Kanzler, supra, cited by the majority, is not at all in point. The question there was upon the construction of two verdicts, one of which found for plaintiffs on their first cause of action and assessed their damages at a certain sum, and the other of which found for the defendants on a counterclaim in a larger sum. The court held that, construed together, the verdicts meant that defendants were entitled to recover the difference between the two sums, and stated that the applicable rule was, "if, from the data contained *468 in the findings returned, the amount recoverable is determinable by a mere mathematical calculation, the findings are sufficient."
There was also in that case a verdict on plaintiff's second cause of action which read:
The question of the construction and validity of this verdict was not mentioned either in the briefs of counsel or in the opinion of the court. It differs markedly from the verdict in dispute here because it does not purport to be a verdict for the plaintiffs and contains no finding in favor of the plaintiffs. A verdict that plaintiff is entitled to recover nothing is on its face a defendant's verdict. But in this case the jury, by their verdict, found in favor of the plaintiff and then allowed him no damages. It is that kind of verdict which our statute denounces and which this court has held too uncertain to be the basis of a judgment.
Much of the court's opinion is given over to an attempt to show that a party waives his right to complain of an irregular verdict by failing to object before the jury is discharged. Were this a case in which the court had denied the motion for a new trial and the plaintiff had appealed, a different question might be presented. But an appeal to this court, based on the denial of a motion for a new trial, is on a different footing from an appeal from an order granting such a motion. We have many times held that the trial court has discretion to set aside a judgment and order a new trial for prejudicial error notwithstanding the failure of counsel to call the matter seasonably to the attention *469 of the court and obtain a ruling. Neal v. Haight, 187 Or 13, 32, 206 P2d 1197; Lyons v. Browning, 170 Or 350, 354, 133 P2d 599; Timmins v. Hale, 122 Or 24, 32, 256 P. 770; Spokane County v. Pacific Bridge Co., 106 Or 550, 553, 213 P 151; Archambeau v. Edmunson, 87 Or 476, 487, 171 P 186. Moreover, as some of the cases cited in the opinion of the majority show, the question of the construction of the verdict is primarily for the trial judge. Simmons v. Fish, 210 Mass 563, 97 NE 102, for example, recognizes the right of the trial judge to determine whether a verdict similar to the one under discussion is an improper compromise verdict and to set it aside for that reason. Fairmount Glass Works v. Cub Fork Coal Co., 287 US 474, 77 L ed 439, 53 S Ct 252, is implicit with the thought that the trial judge had the power to hold that "the jury found for the plaintiff and failed to perform its task of assessing damages", and that the verdict would be subject to be set aside for that reason. Under the theory of these cases, which are relied on as authority by the majority, the trial judge would have been justified in setting aside the verdict under discussion and ordering a new trial for either of the foregoing reasons, and under established procedure this court would not disturb the ruling notwithstanding the failure of counsel to object to the verdict before the discharge of the jury. Snyder v. Portland Ry., Light & Power Co., supra, is not in conflict with this view, for in that case the trial judge refused to grant a new trial and we affirmed the order.
Although the opinion of the majority is replete with general statements by textwriters and judges respecting the rule of waiver, it is significant that not a single decision has been cited which applies the rule to a verdict such as we are now considering. In *470 none of the more than fifty cases cited in the annotation in 116 ALR to which I have referred is the subject of waiver so much as mentioned. Schumacher v. Moffitt, 71 Or 79, 142 P 353, cited in the majority opinion, is not in point. That case was an action to recover a balance due for labor performed. The verdict was for the plaintiff "as prayed for in his complaint". The court entered a judgment for the amount prayed for, and on appeal this court said with respect to the verdict:
That, however, was a verdict in which the jury did "assess the amount of recovery", as our statute requires, though in an unconventional manner, and there could be no doubt about what the jury intended. Entry of judgment thereon was not an unauthorized act, and so it was entirely proper to hold that the party had waived any objection to receiving the verdict by his silence. But Wall v. Van Meter, 311 Ky 198, 223 SW2d 734, 20 ALR2d 272, is a case in point. It was an action to recover damages for personal injuries in which a general verdict for the plaintiff for $98, the exact amount, the testimony showed, that he expended for medical treatment, was held to be bad as violating the instructions of the court. A judgment entered on the verdict was reversed. The appellee, defendant in the lower court, insisted, in the language of the opinion, that "it was incumbent upon appellant to move the court to have the jury correct the verdict and by failing to make such motion, what he calls `the irregularity' in the verdict was waived", citing two Kentucky cases. One of these, the court held, was not in point because *471 the only thing wrong with the verdict was that the jury had failed to separate its findings of several items of damages, and instead brought in a verdict for a lump sum of money. The other case was said to support the appellant's contention rather than that of appellee, and the court, in rejecting the claim of waiver, said:
These instructions were that, should the jury find for the plaintiff, they should award him such a sum of damages as would fairly and reasonably compensate him for physical and mental suffering and for medical expenses incurred. They were held to have been ignored because the jury awarded the plaintiff only the amount of his medical bills.
It will be observed that the verdict in the Kentucky case was invalid for the same reason that the verdict on the second cause of action in this case was invalid. The decision, however, applies with equal force to the verdict on the first cause of action.
The court quotes liberally from 64 CJ, Trial, 1110 § 916, but overlooks the following statement in that section: "Failure to object to an invalid verdict will not preclude a party from subsequently attacking it" (italics added), citing Davis v. Stone, 172 Ky 696, 189 SW 937, and E.B. Whitfield-Baker Co. v. Anderson, 147 Ga 242, 93 SE 406, which support the text.
The court also quotes from Busch, Law and Tactics in Jury Trials § 599. In a footnote to that section the author calls attention to "defects not waived", citing E.B. Whitfield-Baker Co. v. Anderson, supra, and Panhandle & S.F. Ry. Co. v. Clarendon Grain Co., *472 (Tex Civ App) 215 SW 866. The Texas case holds that objection to a joint verdict against defendants, whose liability was separate and distinct, was not waived by failure to object to the reception of the verdict since the "verdict and judgment thereon was not merely defective or informal but positively erroneous."
Since the verdict in question is not a mere informal or irregular statement of the jury's decision, but, as this court has repeatedly held, is invalid and contrary to our statute, a judgment entered upon it may be properly challenged for the first time by motion to set it aside and for a new trial. And it is a matter of no consequence, in my opinion, whether or not such a verdict is "void". The introduction of that word into the discussion adds nothing to the argument. We are not concerned here with a question of collateral attack.
I also dissent from the court's decision respecting the verdict on the second cause of action.
It is established law in this state that in an action based on negligence a verdict for plaintiff for substantial special damages and which allows no general damages is invalid and may be set aside on motion. Snyder v. Amermann, supra; Hall v. Cornett, 193 Or 634, 240 P2d 231. Counsel for defendant seek to distinguish these holdings because damage is the gravamen of an action for negligence, whereas, in an action for assault and battery, an intentional tort, a verdict for nominal damages may be allowed even though no actual damages are suffered. The distinction is pointed out and the authorities reviewed in Hall v. Cornett, supra, at pp. 643, 644. It might have application to this case if in fact the plaintiff had suffered no real injury or if there were a dispute in the evidence upon that issue. But that is not the state of the present case because it is shown without contradiction that the *473 plaintiff was severely beaten in the second altercation and that one of his ribs was broken, necessitating the services of a physician. If, as the jury necessarily found by its verdict for special damages, the defendant was guilty of assault and battery, then plaintiff was entitled to reasonable compensation for his injuries. Dunbar v. Cowger, 68 Ark 444, 59 SW 951; 25 CJS 469, Damages § 11. But a verdict for $1 is not reasonable or any compensation. It is a verdict for nominal damages, which is the same thing as no damages at all. Hall v. Cornett, supra, p. 644. The same rule, therefore, should be applied here as in that case. To hold that the Circuit Court had the power to set aside such a verdict involves no conflict with our decision in Van Lom v. Schneidermann, 187 Or 89, 210 P2d 461, 11 ALR2d 1195, since the court's action did not call for the re-examination of a question of facts tried by a jury, but only for the decision of a question of law. We so held in Hall v. Cornett (193 Or 647).
It was suggested on the reargument by counsel for the defendant that there were circumstances of provocation in evidence which would authorize the jury to mitigate the damages, and that in this view the verdict for $1 compensatory damages need not necessarily be deemed a verdict for nominal damages. The suggestion is without merit, for while provocative words and acts may be considered by the jury in mitigation of punitive damages, this is not true of compensatory damages. Penn v. Henderson, 174 Or 1, 20, 146 P2d 760; Housman v. Peterson, 76 Or 556, 559, 560, 149 P 538. And see Annotation, 63 ALR 890.
It is also contended that the rule of Snyder v. Amermann and Hall v. Cornett does not apply because the sum of $35 special damages is not a substantial sum. I do not agree. The amount allowed was exactly the *474 amount of special damages established by the evidence and submitted to the jury in the court's instructions.
The opinion of the majority dwells at length on one of the grounds of plaintiff's motion for a new trial, to wit, misconduct of the jury, and labors the point that this ground is waived by the failure of a party to make timely disclosure to the court of the misconduct and to apply for proper relief. I do not know what the rule would be where (as in this case) the alleged misconduct becomes known to the court and counsel at the same time. That, however, is a purely academic question, as is the entire discussion of this subject in view of the court's holding in which I concur that no such misconduct is involved.
In support of the motion four grounds are assigned. Number 4 reads in part that the verdict is "inconsistent * * * and is contrary to the uncontradicted evidence and instructions of the Court."
Our new trial statute, ORS 17.610, provides that a new trial may be granted for the following causes, among others:
The fourth ground of the motion is a sufficient statement that the verdict is "against law". For the defect in the verdict here is precisely the defect in the first verdict in Hall v. Cornett, as well as the verdict in Snyder v. Amermann, and we said in Hall v. Cornett:
The language which I have italicized is taken from ORS 17.360, the first sentence of which reads:
The fourth ground of the motion for a new trial also indicates an error in law occurring at the trial, namely, the receipt by the court of an invalid verdict. The fact that no exception was taken by counsel for plaintiff is not important in view of the fact that the court allowed the motion, for, as I have already pointed out, the trial judge in this state has authority in the interest of justice to grant a new trial for error at law even though no exception was taken by the party making the application. See Lyons v. Browning, supra, 170 Or 354. Moreover, in several recent cases we have re-affirmed the rule that the trial judge is given wide latitude in the granting of new trials, and his decision will be upheld on appeal when any "tenable ground" in support of it appears in the record. Hitchman v. Bush, 195 Or 640, 642, 247 P2d 211; Christianson v. Muller, 193 Or 548, 551, 239 P2d 835; Bartholomew v. Oregonian Pub. Co., 188 Or 407, 411, 216 P2d 257. We have also recently said that "It is well established by the decisions of this court that where error has been committed, a motion for a new trial is addressed to the sound discretion of the trial court and will be reviewed only for a manifest abuse of discretion." (Italics added.) In Hall v. Cornett we held that the court was right in refusing to receive a verdict which was bad for the same reason that the verdict on the *476 second cause of action in this case was bad. In Snyder v. Amermann we went further. In that case the court not only received the verdict and entered a judgment on it for the plaintiff, but denied the plaintiff's motion for a new trial. The appeal was by the plaintiff from the judgment, and the ruling on the motion for a new trial was assigned as error. We said that if the verdict was one for special damages "it cannot stand because, under the well-recognized rule of law, before a verdict for special damages may be entered in a case of this kind, there must be a general verdict." (194 OR 678.) The record in that case failed to disclose any exception to any ruling of the court having to do with the validity of the verdict unless it be to the denial of the motion for a new trial. Nevertheless, we held that the ruling was error and reversed. In this case the majority hold that it was error for the court to grant a new trial because of the same kind of defect in the verdict, and this is done notwithstanding our repeated pronouncements that if "tenable ground" for such a decision appears in the record we will not disturb it, and that we will not review it except for abuse of discretion. If entering judgment on a verdict for substantial special damages and no general damages is a tenable ground for reversing an order denying a motion for a new trial in one case, I should like to know why it is not an equally tenable ground for affirming an order which grants such a motion in another case.
To my mind the most serious implication of the court's decision does not arise from the overruling of established precedents which is sometimes desirable but from the further inroads made by the court upon the already too greatly diminished powers of the trial judges of this state. See Van Lom v. Schneidermann, supra, 187 Or 113. When the Constitution unduly limits *477 judicial power we must accept it. But we should be careful about using our own prerogative in such a way as to impose unwarranted restraints on the authority of the courts where the cases are actually tried. Whatever room for differences of opinion there may be about the proper construction of the verdict on the first cause of action in this case, there can be none and none is suggested about the invalidity of the verdict on the second cause of action that it is inconsistent, an improper compromise verdict, contrary to the instructions of the court, and such a verdict as should not have been received. Yet this court now says that, simply because counsel did not speak when he might have spoken, the judge who presided over the trial was without the power to set aside a judgment based upon such an illegal verdict. That, as I view it, is a mistaken and unfortunate exercise of power on our part.
I am authorized to say that Mr. Justice BRAND concurs in the foregoing opinion. | ba98ba01ceb58834739f2702224bea84588fd7fe482a609eb507f020748df208 | 1954-06-17T00:00:00Z |
99a6411e-9e28-43da-afc4-4a8a16278e51 | Pratt v. State Ind. Acc. Com. | 201 Or. 658, 271 P.2d 659 | null | oregon | Oregon Supreme Court | Affirmed June 17, 1954.
*659 C.S. Emmons argued the cause for appellant. On the brief were Willis, Kyle & Emmons, of Albany, and Charles W. Creighton, Jr., of Salem.
Vernon D. Gleaves, Assistant Attorney General, argued the cause for respondent. On the brief were Robert Y. Thornton, Attorney General, and Ray H. Lafky, Assistant Attorney General, of Salem.
Before WARNER, Acting Chief Justice, and ROSSMAN, TOOZE and PERRY, Justices.
AFFIRMED.
WARNER, A.C.J.
Kate T. Pratt, widow of Frank E. Pratt, brought this action to recover benefits under the Workmen's Compensation Law on account of the death of her husband alleged to have arisen as a result of an accident while he was employed by O.M. Middlekauff as a carpenter. Plaintiff's claim was rejected by the defendant Oregon State Industrial Accident Commission for want of sufficient evidence. Thereafter she appealed to the circuit court where the matter was heard without a jury. From a judgment dismissing her complaint, plaintiff now appeals to this court.
The sole question for determination is whether or not the trial court was in error in finding that there was insufficient evidence to prove that Mr. Pratt sustained "a personal injury by accident arising out of and in the course of his employment caused by violent or external means". ORS 656.202.
It appears that Frank E. Pratt, plaintiff's deceased husband, was employed by Mr. Middlekauff for a period between August 21, 1951 and September 21, 1951. During that time he did some painting and carpenter repair work on a dwelling house in Corvallis, *660 Oregon. This he did alone except for two or three days when he had the assistance of his son-in-law, Harley Long.
The following appear as uncontradicted facts: While thus employed by Mr. Middlekauff, Mr. Pratt was instructed to and did remove several old concrete steps. Sometime during the period of his employment Mrs. Pratt noticed that he was limping when he returned from his work but did not know the reason therefor. On September 22, 1951, he called upon Dr. Gearey for treatment, advising the doctor that he had injured his toe by dropping a stone upon it but not telling the doctor that it was incurred while in someone's employ or even while working. A medical examination revealed that the left great toe was broken and the presence of gangrene, a condition necessitating the toe's amputation on October 23, 1951. Medical treatment by Dr. Gearey continued with frequency thereafter, until Mr. Pratt's death on January 13, 1952. Between the time of the toe injury and his death, Mr. Pratt did not file a claim for compensation with the defendant commission, notwithstanding that ORS 656.274(1) requires a filing within three months after the date upon which the accident occurred. The first and only claim was that filed by his wife, and it is the basis for the instant suit. His employer, Mr. Middlekauff, a practicing attorney, did not file an accident report as required by ORS 656.422 until after Mr. Pratt's death.
1, 2. Aside from certain declarations alleged to have been made by the decedent, to which we will make further reference, there is absolutely nothing in the record to support a conclusion that the injury, which, it is said, precipitated Mr. Pratt's death, arose "out *661 of and in the course of his employment caused by violent or external means". ORS 656.202.
To meet this fatal defect, counsel for plaintiff, over objection that the testimony was hearsay, made an offer of proof through Mr. Pratt's employer to the effect that the decedent had told him that the injury had resulted from a slab falling on his foot and that the slab was the first support at the end of the porch on the Middlekauff house. Later, and likewise for the same reasons, the testimony of Harley Long was offered, which in substance was that Pratt had told Long, prior to going to the hospital, that he had injured his foot by dropping a block of cement on it while working on the Middlekauff job.
The court rejected the statements of Mr. Middlekauff and Mr. Long offered in proof and, on the authority of Shepard et ux. v. Purvine et al., 196 Or 348, 248 P2d 352, we think rightly. In the Shepard case this court, speaking through Mr. Justice TOOZE, summarized in the following words the limited occasions and circumstances under which the declarations of a decedent are admissible (196 Or 372):
Also see Newman v. Stover, 196 Or 376, 381, 248 P2d 1069.
The statements attributed to Pratt as being made to the witnesses Middlekauff and Long did not come within any of the exceptions noted in the Shepard case.
Affirmed. | 45ed728f5d5149bf430a954f328c5525057144d18ef57a8804ad0845f304c7e4 | 1954-06-17T00:00:00Z |
d839fde6-7d19-4a63-85dd-fd5be02661ad | US Bank of Portland v. Snodgrass | 202 Or. 530, 275 P.2d 860 | null | oregon | Oregon Supreme Court | Affirmed November 3, 1954.
Petition for rehearing denied November 24, 1954.
*532 Alton John Bassett, of Portland, argued the cause and filed briefs for appellant.
Robert L. Myers and Paul A. Sayre, of Portland, argued the cause for defendants-respondents. On the *533 briefs were DePass & DePass, of Spartanburg, South Carolina, and Winfree, McCulloch, Shuler & Sayre, of Portland.
AFFIRMED.
WARNER, J.
The United State National Bank of Portland (Oregon) in its capacity as trustee under the last will and testament of C.A. Rinehart, deceased, brings this suit against Merle Rinehart Snodgrass, the decedent's married daughter and sole heir, and 17 other defendants who are relatives and contingent beneficiaries of C.A. Rinehart. Plaintiff prays for a declaratory judgment establishing the validity and correct interpretation of the trusts set up by the testament and the rights, if any, of the defendants as beneficiaries thereunder.
On May 31, 1929, at a time when his daughter Merle was about 10 years old, Mr. Rinehart executed the instrument now before us for construction. Paragraph 7 of his will provides:
The testator died in January 1942. It was stipulated that his daughter Merle became 32 years old on May 18, 1951; that sometime in 1944 she married a man who was a member of the Catholic faith; and that at the time she knew of the provisions of the foregoing paragraph 7 of her father's will.
The lower court concluded that the conditions of the bequest to the defendant Merle Rinehart Snodgrass, declaring a forfeiture of her rights in the corpus of the trust if she married a Catholic before her 32nd birthday, were valid and binding upon her and so decreed. The court then proceeded to declare and determine the respective interests of the various defendants who *535 were contingent beneficiaries, succeeding by reason of the forfeiture of Mrs. Snodgrass' gift in her father's estate. From this decree the defendant daughter alone appeals.
The appellant asserts that the court erred in holding as valid that provision of the will which disinherited her because of her marriage to a member of the Catholic faith before she was 32 years old. She leans heavily upon the proposition that such a provision violates public policy.
Mrs. Snodgrass did not join the Catholic church and therefore the clause restraining membership in that faith is not before us. Her loss, if any, accrues by reason of the restriction on her marriage to a Catholic within the time limitation. If the provision is valid, then the defendants-respondents take the entire corpus of the trust set up in the contested paragraph 7, and testator's daughter takes nothing.
The problem here is one of the validity of testamentary restraints upon marriage. While there is an abundance of law on the subject from other jurisdictions, the question and its solution are one of first impression in this court.
The briefs of both parties and some of their citations unavoidably employ various words and phrases which bring into focus the presence of religious prejudice which apparently dictated the contents of the paragraph occasioning this appeal. There we find, among other significant phrases, references to "religious tolerance", "religious freedom" and the "bigotry reflected by the will". No one will venture to gainsay that the father and his daughter in adulthood had entertained antipodal beliefs in the area of religious thought and faith. Indeed, it was the militant hostility of the father to the religion of Mrs. Snodgrass' husband *536 that kindled the flames of the controversy from which this appeal arises.
Litigation springing from religious differences, tincturing, as here, every part and parcel of this appeal, tenders to any court problems of an extremely delicate nature. This very delicacy, together with the novelty of the legal questions in this jurisdiction, warrants pausing before proceeding further and re-orienting our thinking in terms of the real legal problem which we must resolve. As a first step we rid ourselves of some erroneous definitions and the smug acceptance of conclusions arising from the too-frequent and inept employment of such terms as "religious freedom", "religious intolerance" and "religious bigotry". We also disassociate ourselves from the erstwhile disposition of many persons to treat any opposition to a religious faith as a prima facie manifestation of religious bigotry, requiring legal condemnation.
The testamentary pattern of Mr. Rinehart may offend the sense of fair play of some in what appears as an ungracious and determined effort to bend the will of another to an acceptance of the testator's concept of the superiority of his own viewpoint.
1. In terms of common parlance, "bigotry" and its concomitant "intolerance" are ordinarily odious and socially distasteful. They usually connote some intrusion upon or a variance with our traditional thoughts on religious liberty and religious tolerance; but we find nothing in the law declaring religious bigotry or intolerance to be mala in se. It is not until actions motivated by the intolerant extremes of bigotry contravene the positive law or invade the boundaries of established public policy that the law is quickened to repress such illegal excesses and in proper cases levy toll upon the offenders as reparation to those who *537 have been damaged thereby. It is the quality of the act or expression of the bigot not one's bigotry which determines the necessity, if any, for legal interposition.
The appellation "bigot" is therefore a word of social opprobrium, not one of legal condemnation. It can be, and often is, applied with equal force and propriety both to the proponents and opponents of a given thesis of public or religous interest, depending on the degree of their respective uncompromising and dogmatic assertions in the espousal of their several divergent views.
2. While one may personally and loudly condemn a species of "intolerance" as socially outrageous, a court on the other hand must guard against being judicially intolerant of such an "intolerance", unless the court can say the act of intolerance is in a form not sanctioned by the law. We are mindful that there are many places where a bigot may safely express himself and manifest his intolerance of the viewpoint of others without fear of legal restraint or punishment. With certain limitations, one of those areas with a wide latitude of sufferance is found in the construction of the pattern of one's last will and testament. It is a field wherein neither this court nor any other court will question the correctness of a testator's religious views or prejudices. In re Lesser's Estate, 287 NYS 209, 216, 158 Misc 895.
Our exalted religious freedom is buttressed by another freedom of coordinate importance. In condemning what may appear to one as words of offensive religious intolerance, we must not forget that the offending expression may enjoy the protection of another public policy the freedom of speech.
3. The right to espouse any religious faith or any *538 political cause short of one dedicated to the overthrow of the government by force carries with it the cognate right to engage as its champion in the proselytization of followers or converts to the favored cause or faith. To that end its disciples are free to emphasize and teach what is believed by them to be its superior and self-evident truths and to point out and warn others against what its votaries deem to be the inferior, fallacious or dangerous philosophical content of opposing faiths or doctrines. No matter how specious, how intolerant, how narrow and no matter how prejudiced or how dogmatic the arguments of the devotees of one belief may appear to others of different persuasion, the right of either to so express himself is so emphatically a part and parcel of our public policy that it will be defended and protected by the courts of the land to the uttermost, unless it is found that the fanatical and unrestrained enthusiasm of its followers results in acts offensive to the positive law.
It is this unique right to freedom of expression, whether manifested in the political forum, the church chancel or other arenas of thought and action, that has not only contributed so much to the greatness of our country and has given it such a distinctive and distinguished place in the world family of nations but has given additional vitality and substance to our valued religious freedom.
If we will take heed of these things, we can better appreciate and more readily understand why the great majority of the courts have sustained rather than repudiated gifts limited by conditions such as Mr. Rinehart attached to his bequest to his daughter.
We therefore have no intention or disposition to disturb the provisions of Mr. Rinehart's will unless it can be demonstrated that they do violence to some legal *539 rule or precept. Two general and cardinal propositions give direction and limitation to our consideration. One is the traditionally great freedom that the law confers on the individual with respect to the disposition of his property, both before and after death. The other is that greater freedom, the freedom of opinion and right to expression in political and religious matters, together with the incidental and corollary right to implement the attainment of the ultimate and favored objectives of the religious teaching and social or political philosophy to which an individual subscribes. We do not intend to imply hereby that the right to devise or bequeath property is in any way dependent upon or related to the constitutional guarantees of freedom of speech.
4, 5. We will first give attention to appellant's claim that the provision for Mrs. Snodgrass is at odds with the public policy of both the state and national governments. We preface this phase of our inquiry with the following statement from 57 Am Jur 1017, Wills, § 1503, approving it and adopting it as a guide in the evaluation of the respective contentions of the parties to this appeal:
As we shall soon discover, there is nothing in our organic or statutory law or in prior decisions of this court which would strike down or limit a testamentary expression in the form that Mr. Rinehart elected to use in providing for his daughter.
6, 7. Although the appellant rests her appeal primarily upon the premise that paragraph 7 of the will violates public policy, she brings to us no precise statute or judicial pronouncement in support of this contention; but before examining and demonstrating that the authorities cited by appellant are inapplicable, we think it is proper to observe here that it has long been a firmly-established policy in Oregon to give great latitude to a testator in the final disposition of his estate, notwithstanding that the right to make a testamentary disposition is not an inherent, natural or constitutional right but is purely a creation of statute and within legislative control. Leet v. Barr et al., 104 Or 32, 39, 202 P 414, 206 P 548. This is supported by both statutory and judicial expression and points the way as an over-all direction to our own inquiry here.
As early as 1853 our legislature conferred upon every person of qualified age and sound mind the right to devise and bequeath all his estate, real and personal, saving such as is specially reserved by law to the decedent's spouse. ORS 114.020. This generous latitude in testamentary disposition conferred by statute is emphasized and expanded in the often-repeated statement of Mr. Justice WOLVERTON in Holman's Will (1902) 42 Or 345, 356, 70 P 908:
Also see In re Estate of Verd Hill, 198 Or 307, 317, 256 P 735, and cases cited, where it is said that our previous holdings teach us that a "testator is invested by law with substantially all the rights he enjoyed in life to make unfettered disposition of his property".
No one has had the temerity to suggest that Mr. Rinehart in his lifetime could not have accomplished the equivalent of what he sought to accomplish by his will. It was within his power, with or without assigning any reason therefor, to have completely disinherited his daughter and left her in a state of impecunious circumstances. He could have gone even further and given all his fortune to some institution or persons with directions to propagandize his views adverse to *542 any certain religion or creed for which he harbored antipathies.
In Magee v. O'Neill, 19 SC 170, 45 Am Rep 765, the bequest was on the condition that the beneficiary granddaughter be educated in the Roman Catholic faith. There the court said (45 Am Rep 776):
While neither ORS 114.020 nor the Holman case affords a complete answer to the contentions of the plaintiff here, yet we submit that taken together they reveal a long-accepted pattern of public attitude and public policy in this state respecting an almost unrestricted right to dispose of one's property on death. In view of this liberality of testamentary power, we find no occasion to narrow the freedom of a testator's right to dispose of his accumulations unless we are *543 compelled to bend before some other public law or policy establishing limitations not presently apparent.
To sustain the contention that the contested provision of the will is against the public policy of the United States, appellant depends upon the First and Fourteenth Amendments to the United States Constitution; 42 USCA §§ 1981-1983, relating to civil rights (formerly, and as cited by appellant, 8 USCA, Ch 3, §§ 41-43); and Shelley v. Kraemer, 334 US 1, 92 L ed 1161, 68 S Ct 836, 3 ALR2d 441.
8, 9. The First Amendment prohibits Congress from making any law respecting the establishment of a religion. Everson v. Board of Education, 330 US 1, 15, 91 L ed 711, 67 S Ct 504, 168 ALR 1392. That amendment is a limitation upon the power of Congress. It has no effect upon the transactions of individual citizens and has been so interpreted. McIntire v. Wm. Penn Broadcasting Co. of Philadelphia, 151 F2d 597, 601, cert den 327 US 779, 90 L ed 1007, 66 S Ct 530; In re Kempf's Will, 297 NYS 307, 312, 252 App Div 28, aff 278 NY 613, 16 NE2d 123. Neither does the Fourteenth Amendment relate to individual conduct. The strictures there found circumscribe state action in the particulars mentioned and in no way bear on a transaction of the character now before us. Civil Rights Cases (1883) 109 US 3, 27 L ed 835, 3 S Ct 18.
Appellant presses upon our attention 42 USCA § 1983 as embodying a statement of federal public policy controlling here. It reads:
10. The inapplicability of this argument is demonstrated by Robeson v. Fanelli, 94 F Supp 62. That litigation was a by-product of the so-called "Peekskill riots" of 1949 and brought under the provisions of § 1983 of Title 42, USCA, then § 43 of Title 8, USCA. The court in the Robeson case said, at page 66:
Shelley v. Kraemer, supra, is authority only for the proposition that the enforcement by state courts of a covenant in a deed restricting the use and occupancy of real property to persons of the Caucasian race falls within the purview of the Fourteenth Amendment as a violation of the equal protection clause, but, said the court, "That Amendment [Fourteenth] erects no shield against merely private conduct, however discriminatory or wrongful." (3 ALR2d 460)
Failing to find in appellant's citations any foundation for a federal public policy which will give her comfort or aid, we now turn to examine the authorities which she marshals in support of her claim of a public policy in Oregon which would compel us to strike the testamentary provision mandating a forfeiture of her share in the corpus of the trust created by her father. To this end she cites and relies upon Or Const, Art I, and Oregon Laws 1949, Ch 221.
*545 Section 2 and 3 of Art I read:
11. The functions of these sections of Art I are akin to the objectives of the First Amendment, that is, positive bars to legislative action which might impair the full and free enjoyment of the religious liberties thus conferred; and, also like the First Amendment, they are retraints upon the government in dealing with its citizens and have no bearing on individual actions or transactions.
The appellant argues that the public policy of this state relative to matters of the kind now before us will also be found in Oregon Laws 1949, Ch 221 (now codified as ORS 659.020 to 659.140) and that law has the force and effect of invalidating restraints of the character imposed by paragraph 7 of the Rinehart will. Chapter 221 is entitled: "Relating to and providing for the elimination of certain practices of discrimination because of race, color, or religion or national origin". Section 1 declares the public policy of Oregon is "that practices of discrimination against any of its inhabitants because of race, religion, color or national origin are a matter of state concern * * *." Section 2 empowers the bureau of labor "to eliminate and prevent discrimination in employment because of race, religion, color or national origin". Section 3 provides: "The opportunity to obtain employment without discrimination because of race, religion, color or national origin hereby is recognized as and declared to be a *546 civil right." Section 4 defines "person", "employment agency", "labor organization", "unlawful employment practice", "employer", "employe", "bureau", "commissioner" and "national origin". Section 5 declares what shall be regarded as "an unlawful employment practice". Thereafter are five subdivisions addressed to a labor organization; an employer; employer or employment agency; employer, labor organization or employment agency; and any person whether employer or employe. Section 6 provides for complaints by one claiming to be aggrieved by "an alleged unlawful employment practice". The statute thereafter addresses itself to the hearing of such claims and is replete with indications that the relationship of employer and employe and practices of discrimination because of race, color, religion or national origin were intended to be regulated by the legislative assembly. (Italics ours.)
12. It is clear to us that the act when read in its entirety evidences a legislative purpose to prevent certain contractual discriminations in the areas of employment predicated upon prejudices and preferences arising out of race, religion, color or national origin. We are confident that the legislature by the act of 1949 did not entertain the slightest intention to establish a public policy as to relationships other than the status of employer and employe or make it applicable to testamentary dispositions.
13. It is not clear to us from appellant's argument whether she reads the offending provision of the will as an invasion of her constitutional right to religious freedom or views it as an unconstitutional act of discrimination; but whether one or the other, we are content that it does no violence to public policy arising from either category. If the contested portion is to *547 fall, it must be by force of some precept of public policy resting upon different grounds from those here urged by appellant.
We are not unmindful that even though no positive law can be found in Oregon limiting a testator as appellant would have us do here, we should, nevertheless, look into the decisions of the courts of other states to discover, if we can, the prevailing rule applied elsewhere when a testator attempts to limit or restrain the marriage of a beneficiary in the manner that the late C.A. Rinehart attempted to do.
14. The general rule seems to be well settled that conditions and limitations in partial restraint of marriage will be upheld if they do not unreasonably restrict the freedom of the beneficiary's choice. In 35 Am Jur 357-358, Marriage, § 256, we find:
Of the same tenor is 1 Restatement, Trusts, 194, § 62(g), reading, so far as pertinent:
*548 15. We turn to an examination of the controverted provision and note that the condition is not one of complete restraint, in which character it might well be abhorrent to the law. It is merely partial and temporary and, as we shall show later, is not in terrorem. Mr. Rinehart's daughter is not thereby restrained from ever marrying a Catholic. This inhibition as a condition to taking under the will at the age of 32 lasts only 11 years, that is, from the legal marriageable age without parental consent (in this state, 21 years). After the age of 32 she is free to marry a Catholic or become a Catholic if she so pleases and have her estate, too. Moreover, the condition imposed does not restrict the beneficiary from enjoying marital status either before or after attaining the age of 32. Here, unfortunately, appellant would eat her cake and have it, too.
16. In 25 ALR 1523 will be found an ably-edited annotation respecting wills with gifts conditioned that the beneficiary renounce, embrace or adhere to a specified religious faith. At page 1524 the editor makes this statement: "The weight of authority, however, is to the effect that a testator has the right to make the enjoyment of his bounty dependent on the condition that the recipient renounce, embrace, or adhere to a particular religious faith." The following illustrative cases are cited: Barnum v. Baltimore (1884) 62 Md 275, 50 Am Rep 219; Mitchell v. Mitchell (1862) 18 Md 405; Kenyon v. See (1884) 94 NY 563, 29 Hun 212; Magee v. O'Neill, supra (1883) 19 SC 170, 45 Am Rep 765; Re Paulson (1906) 127 Wis 612, 107 NW 484, 5 LRA NS 804, 7 Ann Cas 652; Renaud v. Lamothe (1902) 22 Can L T Occ N 357, 32 Can SC 357; Hodgson v. Halford (1879) LR 11 Ch Div (Eng) 959, 40 LJ Ch NS 548, 27 Week Rep 545; Clavering v. Ellison (1859) 7 HL Cas 707, 11 Eng Reprint 282, 29 LJ Ch NS 761; *549 Re Trust Funds (1850) 1 Sim NS 37, 61 Eng Reprint 14, 20 LJ Ch NS 33, 15 Jur 282; Re Knox (1889) 23 LR Ir 542; Maguire v. Boylan (1871) Ir R 5 Eq 90; Haughton v. Haughton (1824) 1 Molloy (Ir) 611; Laurence v. McQuarrie (1894) 26 NS 164. To this list we add three more recent cases: Delaware Trust Co. v. Fitzmaurice (1943) Del, 31 A2d 383; In re Kempf's Will, supra (1937) 297 NYS 307; In re Lesser's Estate, supra (1936) 287 NYS 209. Only three cases to the contrary are found in the annotation and are the only ones employed by the appellant in support of a contrary rule.
Mrs. Snodgrass forthrightly concedes that the numerical weight of authority is against her position, and we add that our own examination of the several cases cited in 25 ALR and by us above give sound support and reason to the general rule therein stated and affirmed by 35 Am Jur 357, Marriage, § 256, and 1 Restatement, Trusts, 194, § 62(g). They are written with due respect to the same principles approving liberality in the making of testamentary disposition which underlie our more familiar ORS 114.020 and Mr. Justice WOLVERTON'S opinion in Holman's Will, supra, 42 Or 345.
We shall not burden this opinion with an analysis of the cases cited in 25 ALR but because of their relative recency in the field of the law in which we are presently interested and because they give such complete answer to the arguments here advanced by appellant and others who strive for a departure from the general and prevailing rule as gleaned from the weight of authority, we attach much weight to Delaware Trust Co. v. Fitzmaurice, supra, and the two New York cases to which we now refer.
In the case of In re Lesser's Estate, supra, the provision *550 of the will construed created a trust for the following purposes (287 NYS 211-212):
The objections there raised were disposed of by the court in these words (287 NYS 216):
In In re Kempf's Will, supra, 297 NYS 307, the testator made substantial gifts to his grandchildren payable when they became 21 years of age but made upon the condition that said children "`shall be brought up and educated in the faith of and according to the Roman Catholic Religion'", otherwise the provision to be void. In respose to the argument seeking to invalidate the condition, the court says, at page 312:
In Delaware Trust Co. v. Fitzmaurice, supra, we find a will wherein the receipt of income from a testamentary trust created by decedent was made payable to Ruth M. Ogle "`so long as she lives up to and observes and follows the teachings and faith of the Roman Catholic Church, and no longer'". Here the court in upholding the provision follows and cites all the cases relied upon in the annotation above referred to from 25 ALR 1524, and meets the contention of the beneficiary Ogle as follows (31 A2d 389):
The court held that Ruth M. Ogle was not entitled to the gift in question.
It will be observed that the condition of restraint imposed by the will construed in Delaware Trust Co. v. Fitzmaurice, supra, above quoted and in that case declared valid, is far more inclusive than the one in the will now before us in that the condition was operative during the entire life of the donee. In the instant matter, the restraint on free choice of religion became inoperative after the legatee became 32 years old.
So far as we are able to ascertain, only two states Pennsylvania and Virginia have invalidated testamentary provisions committing the beneficiary to adhere to the doctrines of a particular religion. This departure from the majority rule is reflected by Drace et al. v. Klinedinst (1922) 275 Pa 266, 118 A 907, 25 ALR 1520; and Maddox v. Maddox (1854) Va, 11 Grat 804.
The appellant can garner no comfort from the Pennsylvania case wherein the testamentary provision is declared invalid on the basis of an entirely different theory from the one here present. It rests upon a state of facts wholly unlike those apparent in the instant matter. In the Maddox case the condition was that the testator's daughter should marry a member of the Society of Friends. There were only five or six marriageable males of that faith within the circle of her acquaintances, *554 and under the circumstances peculiar to that case the court held that the condition was an unreasonable restraint on marriage.
The last contention of Mrs. Snodgrass requiring consideration is that the offending provision is in terrorem and therefore invalid.
The phrase "in terrorem" is not new to the law of wills, although infrequently applied. It has been defined as "In terror, or warning; by way of threat. The term is applied to gifts or legacies given on conditions subsequent, because it is said that the possibility of losing the gift tends to inspire fear or dread." 42 CJS 491. It is a rule designed to test the validity of gifts with certain conditions subsequent.
17. Generally, conditions in restraint of marriage are said to be in terrorem and therefore invalid when the subject of the gift is personal property and there is no gift over; but such a condition is not void as being in terrorem when there is a gift over. It is the absence of a gift over which supplies the quality of a coercive threat necessary to bring the condition under the in terrorem rule. 35 Am Jur 367, Marriage, § 266. It is also said in 35 Am Jur, supra, 369, § 267:
"The condition where there is no devise over, is said to be in terrorem merely, a convenient phrase adopted by judges to stand in place of a reason for refusing to give effect to a valid condition." Hogan v. Curtin, 88 NY 162, 171, 42 Am Rep 244. We are impressed with the truth of that sapient observation, revealing as it *555 does the tenuous foundation for this seldom-used rule of construction. We also find it an affront to intelligence and a strain upon imagination to be asked to assume that if there is no gift over, then it is a matter of natural expectation that a named beneficiary will be terrified into an acceptance of the conditions attached to the gift, knowing that if he does not, the testator's gift may go to parties unknown.
18. Because of its irrational quality and its indefensible character as a "convenient phrase * * * to stand in place of a reason", we cannot recognize it as having any proper place in our jurisprudence and therefore decline to apply it as a medium for testing the validity of the seventh paragraph of Mr. Rinehart's will.
Before coming to the foregoing conclusion, we made inquiry to discover to what extent, if any, this court had employed the term as a test of validity to a condition in restraint. Our research produced but one instance, Wadsworth v. Brigham et al. (1928) 125 Or 428, 259 P 299, 266 P 875. In that case the court struck down a provision in a will which cast upon one claiming to be a legal heir of the testator the duty to legally establish such claim and thereafter be limited to a gift of $5. The operation of this provision as worded put upon plaintiff who claimed to be the daughter and sole heir of the testator the heavy duty of proving her legitimacy. The provision was held to be invalid as to the plaintiff appellant for the reason that she as a child of the testator had not been named or provided for as required by ORS 114.250 (then OL § 10101). After so holding the court concluded with this dictum (125 Or 455): "Furthermore, this provision being in terrorem, it is void." With this state of the record it is difficult to conclude that we are departing from an *556 established rule of this court when we express our disinclination to apply it here or in the future.
The appellant here is in a rather anomalous position when she attempts to invoke the rule of "terror", for her very act in marrying a Catholic before becoming 32 attests its innocuous effect as an inspiration to fear so far as the full exercise of her own judgment was concerned.
We conclude with a statement from Magee v. O'Neill, supra, 19 SC 170, 45 Am Rep 765, 776-777, substituting the name of the beneficiary here for the one named in the Magee will:
Affirmed. Neither party will recover costs.
Brand, J., dissents. | 698ae13465d1fc58febacfe1a6d5e2ec5732394bf308e1203ebc773ac45b852a | 1954-11-03T00:00:00Z |
8d0a0da1-ffc4-4734-9362-4e6ee5eb633e | Ricker v. Ricker, Administratrix | 201 Or. 416, 270 P.2d 150 | null | oregon | Oregon Supreme Court | Affirmed May 12, 1954.
Petition for rehearing denied June 17, 1954.
*417 Charles R. Cater, of La Grande, argued the cause and filed a brief for appellant.
Patrick J. Gallagher argued the cause for respondent. On the brief were Gallagher & Gallagher, of Ontario.
*418 Before LATOURETTE, Chief Justice, and WARNER, ROSSMAN, TOOZE and PERRY, Justices.
AFFIRMED.
TOOZE, J.
This is an action for money loaned, brought by plaintiff F.E. Ricker against Mabel Ricker, executrix of the estate of G.H. Ricker, deceased, as defendant. The trial court sustained defendant's general demurrer to the amended complaint; and plaintiff having failed to plead further, judgment was entered dismissing the action. Plaintiff appeals.
By his amended complaint, plaintiff, after alleging the appointment of defendant as executrix of the estate of G.H. Ricker, deceased, stated his cause of action as follows:
Defendant demurred to this amended complaint on the ground that it failed to state facts sufficient to constitute a cause of action.
It is defendant's position, and the trial court held, that on its face the amended complaint conclusively established that the alleged claim against the estate of G.H. Ricker was barred by the statute of limitations: ORS 12.080.
That statute provides that "an action upon a contract or liability, express or implied" shall be commenced within six years after the cause of action shall have accrued.
The sole contention made by plaintiff on this appeal is that the objection that the complaint shows on its face that the cause of action is barred by the statute of limitations must be made by special demurrer based upon that particular ground, and that it cannot be made by general demurrer. He states his proposition as follows:
In support of this contention, plaintiff cites ORS 16.260 and ORS 16.330; also, Eastman v. Crary, 131 Or 694, 699, 284 P 280.
*421 Oregon Revised Statutes 16.260 provides:
Oregon Revised Statutes 16.270 provides:
Oregon Revised Statutes 16.330 provides:
In Eastman v. Crary, supra, we said:
1. The amended complaint shows on its face that the money was loaned to G.H. Ricker, now deceased, on *422 December 8, 1919. At the time the loan was made by plaintiff as alleged, no time was fixed for the repayment thereof. In such circumstances, it was repayable on demand. 58 CJS 878, Money Lent, § 3a.
2. It is well settled that the statute of limitations begins to run at the time when a complete cause of action accrues or arises, unless it is otherwise provided by statute. In 54 CJS 45, Limitations of Actions, § 130, the following rule is stated:
3. It follows, therefore, that the statute of limitation commenced to run against plaintiff on December 8, 1919, the date it is claimed the loan was made. The original complaint in this case was filed on August 12, 1953, or approximately 34 years after the statute began to run.
4. However, plaintiff contends that the running of the statute of limitation was tolled by an oral agreement that was made between himself and the borrower, G.H. Ricker, on October 19, 1924. The statute had been running against plaintiff for approximately 5 years at that time. The agreement alleged to have been made on October 19, 1924, was a new contract between the parties. This contract was not evidenced by any writing which was signed by G.H. Ricker. For that reason, the evidence of such oral agreement was insufficient to toll the running of the statute.
Section 1-222, OCLA (ORS 12.230) provides:
According to the allegations of the amended complaint, the last payment by the borrower upon the loan, either as principal or interest, was made October 19, 1924, or approximately 29 years prior to the time action was commenced. Hence, it appears from the complaint itself that at the time plaintiff commenced his action, the statute of limitation had been running for approximately 29 years without interruption.
5, 6. Moreover, the alleged agreement of October 19, 1924, that G.H. Ricker would repay the loan when he "got on his feet", even had it been in writing, would not have tolled the running of the statute indefinitely. Under such an agreement, the money would have been repayable after a reasonable time. In 58 CJS 878, Money Lent, § 3a, this rule is stated as follows:
Also see Samuels v. Larrimore, 11 Cal App 337, 104 P 1001, 1002.
It could hardly be contended that 29 years was a reasonable time, either as a question of fact or of law.
7. In the light of the statutes of this state, and the decisions of this court construing them, it is settled that ordinarily when it appears on the face of the complaint that the cause of action is barred by the statute of limitation, the objection must be raised by a *424 demurrer based upon that particular ground, and, if not so raised, the objection is waived.
However, it must be kept in mind that this action is based upon a claim presented against the estate of G.H. Ricker, deceased. Although the complaint is not very definite as to the form and contents of the claim presented to the defendant-executrix, we gather from its allegations that the claim was in substantially the same terms as those presented by the complaint. Therefore, upon the face of the claim as presented to the executrix it clearly appeared that the debt had been barred by the statute of limitation.
Oregon Revised Statutes 116.555 provides:
8. This statute is mandatory. Under its plain terms, the defendant was expressly prohibited from allowing plaintiff's claim. It is such a claim as cannot be enforced against the estate of decedent. The defendant could not waive the statutory ban.
9. The statute in question is a special statute dealing with a particular subject; whereas, ORS 16.260 and 16.330 are statutes of general application. Under well-recognized rules of statutory construction, the provisions of ORS 116.555 would be controlling. State ex rel. Gladden v. Lonergan, 201 Or 163, 269 P2d 491; State v. Preston, 103 Or 631, 637, 206 P 304, 306, 23 ALR 414; 82 CJS 834, Statutes, § 367b.
10. It appearing upon the face of the amended complaint that the alleged cause of action was based upon a claim against the estate that was not a valid and *425 enforceable demand, it follows that the complaint failed to state facts sufficient to constitute a cause of action, and was subject to demurrer on that ground.
The trial court did not err in sustaining the demurrer and dismissing the action.
The judgment is affirmed. | 173a88a96eca06fdd26f224a1cef92f2ee64d8b0cc275f2ee992e58888475396 | 1954-05-12T00:00:00Z |
6b7422ab-41af-470e-97b5-66c5bb4f9eec | Allen v. Allen | 200 Or. 678, 268 P.2d 358 | null | oregon | Oregon Supreme Court | Affirmed March 24, 1954.
*679 William S. Fort argued the cause for appellant. On the briefs were Husband, Fort and Johnson, of Eugene.
John W. Pennington argued the cause for respondent. On the brief were Ray and Pennington, of Eugene.
Before WARNER, Acting Chief Justice, and LUSK, BRAND and PERRY, Justices.
AFFIRMED.
WARNER, A.C.J.
Vernon V. Allen, the appellant, and Helen Allen (now Helen Allen Miller) the respondent, were divorced in 1948 pursuant to a decree made in the circuit court for Lane county. The decree followed a stipulation of the parties with reference to the custody and control of the children of the parties and provided in part:
*680 While the children were in the custody of the respondent in California in 1950, pursuant to the provisions of the 1948 decree, respondent instituted a proceeding in the Superior Court of that state wherein she sought to modify the Oregon decree and thereby secure the complete custody and control of the children. The California court attempted to change the Oregon decree only to the extent of conferring on the children's mother an expanded right to have them with her 60 days of the summer season and on alternate Christmas and Easter vacations.
Inspired, no doubt, by this action of the California court and to circumvent its repetition, Mr. Allen moved the circuit court of Lane county for a modification of the custody provision of the Oregon decree so as to provide that the care, custody and control of the children vest solely in him, subject only to the right of reasonable visitation in Oregon by their mother. The father appeals from the circuit court's denial of the motion.
The appellant urges two matters as his claim of a change of conditions warranting such modification in accordance with his motion. They are (1) the wishes of the children and (2) the fundamental changes flowing from their growth and development during their adolescence. No representation is made by either party derogatory to the character of the other. The lower court found no merit in either claim sufficient to warrant an allowance of appellant's motion. We concur in those findings.
1, 2. The wishes of the children are reflected by certain letters written by them expressing a desire to remain with the appellant. At the time of the motion in 1951 the boy was 13 years of age and the girl 11. Appellant *681 contends that these preferences of the children are entitled to "substantial weight". A more nearly accurate evaluation of this kind of evidence is that if the child has attained the age of discretion, the court may consider it as persuasive, although not controlling. Hurner v. Hurner, 179 Or 349, 365, 170 P2d 720; Johnston v. Johnston, 155 Or 256, 257, 63 P2d 209. Our examination of these letters, particularly those written in Lane county in December 1951, inclines us to believe that they were not free and spontaneous expressions of the youthful writers but, on the other hand, were written responsive to the subtle influences which a parent can bring to bear on an unsuspecting youthful mind and thereby incite in the child prejudices against one parent and excessive devotion in favor of the other. The circuit court was correct in refusing to be persuaded by their contents.
The record reveals that the circuit court, in arriving at its conclusion in the matter at bar, gave some respect to the California decree above referred to, apparently on the theory that the Allen children had established a legal domicile in that state while visiting their mother in response to the mandates of the Oregon decree. It raises the question of the place of the children's legal domicile and is of such importance in this matter that it should be set at rest for all time.
A very apparent reason for the father's desire to modify the decree is to still any future contention concerning the legal domicile of the children and in a manner which will compel the respect of courts in foreign states. There is much in the record to warrant such a desire, particularly in terms of the welfare of the son and daughter of the parties. Too frequently *682 and in too many places the Allen children have been made pawns in the conflict between their father and mother in the efforts of each to obtain complete custody and exclusive control. It is a record which does neither party any honor. It strongly suggests that the cloak of paternal affection with which they drape themselves is but a cover to a smoldering spirit of vindictiveness engendered before their divorce and since inflamed by the subsequent litigation. In the nine years between 1942 and 1951 this boy and this girl have been made the subjects of custodial contentions in seven different judicial contests between the parents in the courts of three different states Oklahoma, California and Oregon.
3. One of the many objectionable features of divided custody and control comes to the fore when the parents reside in different states, giving rise in some instances, as here, to litigation involving questions as to the situs of the child's legal domicile. This court has repeatedly expressed itself as being opposed to the principle of divided custody. Hixson v. Hixson, 199 Or 559, 263 P2d 597; McDonald v. McDonald, 197 Or 275, 281, 253 P2d 249; Flanagan v. Flanagan, 195 Or 611, 622, 247 P2d 212; Raw v. Raw, 195 Or 373, 245 P2d 431; Gallagher v. Gallagher, 187 Or 625, 634, 212 P2d 746. Divided custody will not be approved except under very exceptional circumstances. Hixson v. Hixson, supra.
If we correctly apprehend that one of the motives for the appellant's motion to modify was to fix for all time the place of the children's legal domicile, then we are persuaded that the motion in this matter was unnecessary to attain that result alone. The provisions of the custody paragraph of the decree as *683 made in 1948 plainly indicate it was the judicial intent that the permanent legal domicile of the Allen children was to be that established by their father, with whom they are to reside 11 months of the year, and we so hold. We also think that such a conclusion was exactly what the parties contemplated in their stipulation which was the basis for the custodial section of the decree.
When it entered the 1948 decree, the court was apprised of the custodial controversies which had theretofore prevailed between the parties with reference to these children and their mutual desire to terminate the future continuity. The stipulation referred to reads in part:
No court conscious of the evils flowing from divided custody, particularly as evidenced by this prior history of the Allen family, would have ventured to give the other parent out-of-state custody and control if it had surmised that such temporary custody would be tortured into a claim of domicile in that foreign jurisdiction, *684 when, in fact, the children were temporarily residing out of Oregon for only 30 days in each year, pursuant to a grant of a permissive visitation with their mother.
4. It is clear to us that the circuit court in 1948, well aware that the children's welfare would not be served by making them the subjects of the custodial controversy annually in the courts of whatever state they were then visiting their mother and on the theory that their Oregon domicile was abandoned when they entered the state of their mother's residence for a month's visit, intended to and did fix their permanent domicile as that of their father.
5, 6. Our construction of the Oregon decree, confirming as we do the father's domicile as the permanent domicile of the children, destroys the claims of the California courts to jurisdiction over them in proceedings intended to disturb their custodial status, as defined by the Oregon decree. It also robs the California decree of 1951 of the full faith and credit usually attaching to judicial judgments regularly obtained in a foreign jurisdiction. See Lorenz v. Royer et ux., 194 Or 355, 241 P2d 142, 242 P2d 200; Griffin v. Griffin, 95 Or 78, 187 P 598; Jones v. McCloud, 19 Wash2d 314, 142 P2d 397; Motichka v. Rollands, 144 Wash 565, 258 P 333; Restatement, Conflict of Laws, 212, § 147.
The order denying appellant's motion is affirmed. | 1e29de0a7a9761e0bdd959b9a40b434c14ed30f8880ab0e5b3465509378a1117 | 1954-03-24T00:00:00Z |
e17f5a22-b4b1-4a53-9c0d-dcbb4b3776f8 | Douglas County v. MEYERS | 201 Or. 59, 268 P.2d 625 | null | oregon | Oregon Supreme Court | Affirmed March 31, 1954.
*61 Harrison R. Winston, of Roseburg, argued the cause for appellants. On the brief were Winston & Dimick, of Roseburg.
Warren A. Woodruff, of Roseburg, argued the cause for respondent. With him on the brief was Robert M. Stults, of Roseburg.
Before WARNER, Acting Chief Justice, LUSK, BRAND and PERRY, Justices.
AFFIRMED.
PERRY, J.
This is an action brought by the plaintiff to exercise its right of eminent domain by condemning a strip of land containing 3.17 acres through the land of the defendants. The jury returned a verdict for the sum of $4,250, with interest, and from the judgment entered thereon by the circuit court the defendants have appealed.
1. The defendants assign as error the admission of the testimony of the plaintiff's witness, P.K. DeShields. The sole objection to his evidence arises as follows:
The objection goes no further than to require the witness to testify to the value of the property before *62 the proposed taking of the 3.17 acres. This he had already done. No objection was ever made to the qualifications of this witness to testify to the market value of the property in controversy. This, however, is now the burden of the defendants' argument in this court, and this court will not review evidence admitted where an objection was not first made to its admission in the trial court. Suko v. Northwestern Ice Co., 166 Or 557, 572, 113 P2d 209; Cyllenberg v. Heriza et al., 127 Or 481, 487, 272 P 674.
The defendants also assign as error the court permitting Joe Morgan and Ray Reubel to testify to the value of the land taken, and the damage to that remaining after the taking, on the theory that neither was qualified to express an opinion upon the values of this particular land.
The roadway sought to be taken by condemnation traverses the land of the defendants which is located in what was described as "Virgin territory" lying along the bank of the North Umpqua river about 37 miles east of the city of Roseburg, Oregon, where the defendants had since the fall of 1946 maintained and operated a summer resort under the name of "Thunder Mountain Lodge". Entrance to the resort was gained over a private road connecting with an old forestry road to the north of the right of way sought to be condemned. On a comparatively level area below the old forestry road the defendants had constructed of rough timber six frame cabins (two not completed) with canvas roofs, a building for toilets and bath, a recreation hall and dining hall. These buildings were served with water from an old spring and lighted by electricity. The cabins alone were situated upon the right of way and taken by condemnation, and the proposed roadway passed between the resort property and the river.
*63 2. The witness Joseph Morgan testified that he had been a real estate dealer since 1946, handling sales of rural property and timber, was acquainted with property values on the North Umpqua river, and was acquainted with the particular property in question. This would amply qualify the witness to state his opinion, leaving the weight to be given thereto to the judgment of the jurors. 18 Am Jur 999, Eminent Domain, § 355. On cross-examination he was asked these questions and answered as follows:
After eliciting on cross-examination the above information from the witness, the defendants did not move against the testimony of the witness by either renewing their previous objection or moving to have it stricken. Therefore, should we consider that the answers above given would authorize a trial court to reject the testimony of the witness, this court will not consider such an objection when made for the first time on appeal. Cyllenberg v. Heriza, supra.
Ray Reubel, called as a witness for the plaintiff, testified that he was a real estate man familiar with *64 property values on the North Umpqua river in the vicinity of the property in question. He had not, however, been upon the property in question until about a week before being called to testify. At the time of his inspection the roadway had been cut through, the tent cabins destroyed, and the trees upon the right of way removed. The witness excluded from his opinion of value the matter of the timber. His testimony was given as to the value in April, 1950, and the defendants objected as follows:
3-5. The rule of expert testimony, i.e., testimony connected with a matter of science or technical skill which requires knowledge generally possessed by those who have made a particular study of certain subjects, is not a required necessity where value is concerned. Generally, anyone who has knowledge of the price which things usually bring can testify. However, should Reubel be considered as an expert witness, we have said: "Whether one who purports to be an expert is possessed of qualifications and experiences sufficiently greater than those possessed by the ordinary juror, so that his testimony will in fact enlighten the jury, is generally a matter which can be safely entrusted to the discretion of the trial judge." Pennebaker v. Kimble et al., 126 Or 317, 330, 269 P 981; State v. Jennings, 131 Or 455, 282 P 560.
6. In determining the damage to the land not taken, a witness must generally be familiar with the market value of the property before the injury is inflicted. *65 "Where, however, such knowledge is acquired at a later date the admissibility of a witness' opinion based upon such subsequently acquired knowledge generally depends upon whether there has been any substantial change in the condition of the property." 5 Nichols, Eminent Domain, 176, Evidence, § 18.43 [1].
7. While there had been a change in the condition of the property by the removal of the tent cabins, and a change in the topography of the land by cutting through the road, nevertheless, the learned trial judge accompanied the jury when it viewed the premises, saw its condition, and from his ruling we deduce the trial court determined that, considering the character of the property taken, there was not sufficient change in the condition of the property to disqualify the witness from stating an opinion as to the market value of the land before the taking. The trial court understood the situation, and since of necessity large discretion must be lodged in that court in the admission of expert testimony, there must be a showing of an abuse of that discretion which does not here exist.
8. The defendants also complain of the court requiring the defendant, Jack Myers, to testify to the amount paid in the purchase of land by the defendants in the year 1945. The court admitted the evidence for "whatever effect it may have on the value as of the 13th day of April, 1950". It is generally held that prejudicial error is not committed unless the sale was at such a remote time or when conditions affecting the value have materially changed. Fidelity Sec. Corp. v. Brugman et al., 137 Or 38, 48, 1 P 2d 131, 75 ALR 1333; Portland v. Tigard, 64 Or 404, 129 P 755, 130 P 982.
9. The defendants argue that there has been an increase in the value of the timber located upon the land *66 and an increase in the value of the premises by reason of the improvements placed thereon. The defendants had offered evidence of the value of the improvements and as to the increased value of the timber. We do not feel that the purchase was so remote in time that the jury could in anywise be misled.
10. Finally, the defendants complain of the court striking from their further and separate answer an allegation to the effect that the plaintiff had offered the defendants the sum of $5,000 as damages for the taking of the land sought to be condemned, and that the defendants had refused this offer. This was most proper. No issue of fact was by such an allegation tendered for determination by the jury. ORS 281.330 (2) provides as follows:
It is to be noted that the matter of attorney's fees is based upon a showing to the court that there has been a recovery from the county of a greater amount than the county had tendered to the defendant before commencing its action. This is a showing to the court and not to the jury. The right to an attorney's fee arises subsequent to the verdict of the jury and if allowable is taxed as costs in the case. The court was correct in its ruling.
Finding no error in the record, the judgment is affirmed. | adcbc276d6c3c1d3b5f10f1d74ae3c9e7b1a47d91f197a74ab894f00a764e716 | 1954-03-31T00:00:00Z |
311f2240-759a-43f7-9853-c8085b013eb1 | Land v. West Coast Life Ins. Co. | 201 Or. 397, 270 P.2d 154 | null | oregon | Oregon Supreme Court | Reversed and remanded May 19, 1954.
*398 Denton G. Burdick, Jr., of Portland, argued the cause for appellant. With him on the briefs were Cake, Jaureguy & Hardy, of Portland.
John C. Veatch argued the cause for respondent. On the brief were Veatch, Bradshaw & Veatch, of Portland.
Before WARNER, Acting Chief Justice, and ROSSMAN, LUSK and BRAND, Justices.
REVERSED AND REMANDED.
WARNER, A.C.J.
This is an action to recover benefits alleged to have accrued under a life insurance policy. From a judgment on the pleadings in favor of the defendant West Coast Life Insurance Company, the plaintiff Marie Elizabeth Land appeals.
Plaintiff is a member of the Oregon State Employees' Association (hereinafter called the "association"), a nonprofit corporation composed of persons employed by the state of Oregon and who are insured under a group life insurance policy issued by the defendant.
*399 The defendant West Coast Life Insurance Company (hereinafter called the "company") is a California corporation authorized to do business in the state of Oregon.
A rider attached to the group policy issued by the company authorized the association, in consideration of the payment of certain premiums, to insure the "dependents" of its insured members. This rider defines a "dependent" as "only a Member's legitimate unmarried child over three months of age but under eighteen years of age, or a Member's spouse under sixty-five years of age, neither of whom is a Member of the Association eligible for insurance under the Group Policy."
Plaintiff, as an insured member of the association, exercised the privilege of insuring dependents and applied for coverage on the life of her husband, James Howard Land. Thereafter, through the association she paid the company the monthly premium specified for such insurance.
In October 1949, subsequent to the issuance of the insurance on Mr. Land, plaintiff and her husband were divorced; but notwithstanding the dissolution of that marriage, the association continued to pay to the company from month to month, as the same became due, the premiums payable on the insurance issued on the life of Mr. Land. These premiums were paid regularly to and including the 30th day of March, 1950, when Mr. Land died. The Lands' divorce did not become known to the company until after Mr. Land's death, when plaintiff made demand for the sum of $1,000 as the death benefit due under the policy. The company refused to honor the claim and refunded to the association the premiums collected subsequent to the date of the divorce.
*400 The only question presented for our determination is whether plaintiff's divorce precludes her from collecting on the policy issued on the life of her former husband.
1. Speaking generally, group insurance is the coverage of a number of individuals by means of a single or blanket policy, thereby effecting economies which frequently enable the insurer to sell its services at lower premium rates than are ordinarily obtainable for the same type of insurance protection under life policies sole to individuals. 1 Appleman, Insurance Law and Practice, 36, § 41; 1 Couch, Cyclopedia of Insurance Law, 44, § 29; Vance, Insurance 3d ed, 1034, § 203; 44 CJS 479, Insurance § 15.
The respondent company strongly intimates, but does not demonstrate, the existence of a body of law outside the domain of statutory regulation peculiarly applicable to group insurance in contradistinction to the rules generally applied to the construction of ordinary individual life policies. It is not strange that respondent is unable to cite us successfully to law which would support its thesis, for the reason that group insurance policies are relatively new and have not been, to a very wide extent, the subject of judicial consideration. This was recognized in Zeigler v. Equitable Life Assur. Soc., 219 Iowa 872, 259 NW 769, 770 (1935) where the court said:
Also see Garnsky v. Metropolitan Life Ins. Co., 232 Wis 474, 287 NW 731, 124 ALR 1489 (1939); 29 Am Jur 186, Insurance § 167.
2. While new problems necessarily arise because of the group features of this insurance, it is clearly held that the ordinary principles of personal insurance apply to the construction of these contracts. 1 Appleman, Insurance Law and Practice, 36, § 41; 29 Am Jur 1027, Insurance § 1370.
3. The language used in a contract of insurance is entitled to a liberal construction as favorable to the insured as in good conscience will be permitted, and every reasonable intendment will be allowed in support of a view that will protect the insured and defeat a forfeiture. Smith v. Ind. Hosp. Assn., 194 Or 525, 532, 242 P2d 592; Schoeneman v. Hartford Fire Ins. Co., 125 Or 571, 577, 267 P 815. It is applicable to group insurance contracts. 44 CJS 1183, 1189, Insurance § 297.
4. Among other rules of law peculiar to insurance contracts, including group insurance, is the fundamental principle that one taking out a policy of insurance on the life of another for his personal benefit must have an insurable interest in the life of the one so insured. 2 Appleman, Insurance Law and Practice, 77, § 761; 1 Cooley, Briefs on Insurance 2d ed, 330. As a general rule, the insurable interest of a wife in the life of her husband ceases upon a divorce of the parties (175 ALR 1222; 52 ALR 387), but such an event does not necessarily negative her right to recover under a policy issued to her. Under the rule prevailing in most *402 jurisdictions, a life policy originally valid does not lose its vitality solely because of the cessation of the insurer's interest in the life of the insured, unless such be the necessary effect of the provisions of the policy itself. 175 ALR 1224; 52 ALR 389; 2 Appleman, Insurance Law and Practice, 91, § 763; 1 Cooley, Briefs on Insurance 2d ed, 414-418; Vance, Insurance 3d ed, 185-187, § 31.
5, 6. Conn. Mut. Life Ins. Co. v. Schaefer, 94 U.S. 457, 24 L ed 251, is the leading case in the United States, holding that an insurable interest existent at the inception of the life insurance contract does not have to continue status quo to and until the death of the party insured. In the Schaefer case the surviving wife of the insured had received a divorce prior to the death of her husband. The United States Supreme Court held (94 US 461): "* * * We do not hesitate to say, however, that a policy taken out in good faith, and valid at its inception, is not avoided by the cessation of the insurable interest, unless such be the necessary effect of the provisions of the policy itself. * * *"
Applying the rules applicable under individual life insurance policies on the life of another, wherein the insured is a spouse of the beneficiary, it follows that unless there were provisions within the instant insurance contract, the necessary effect of which would terminate the coverage when the Lands were divorced, the lower court's holding cannot be sustained.
We now turn to examine the terminal provisions of the company's contract. Its master policy provides for termination as to an individual member (in this instance, the plaintiff Mrs. Land) upon the happening of any of the following contingencies:
A somewhat similar provision is contained in the rider attached to the master policy which applies to the termination of the coverage issued on dependents of any member (in this instance, the late Mr. Land) and in this respect reads as follows:
7. Nowhere in the policy or in the rider is there a provision that insurance issued on the life of a dependent spouse shall terminate in the event dependent's relationship to the member shall end by divorce.
The instant policy, as we have noticed, extends two insurance opportunities to each member, i.e., coverage for the member and the unique right of the member to secure coverage for all eligible dependents of the member who are outside the member group. It is expressly provided that if such dependent subsequently becomes a member of the group, then the insurance of the member "with respect of a dependent shall automatically terminate".
It is clear that it was not Mr. Land's relationship to the group that made him insurable under the contract. Rather it was his relationship to the plaintiff as a member of the group that controlled. The right to insure was, therefore, in the plaintiff, not in her husband. Here the certificate was not issued to the husband but was taken out by the plaintiff wife on *405 the life of her husband and in much the same manner and with the same liability on the part of the insuring company as if Mrs. Land had initially and directly contracted with the company for an individual policy on the life of her husband. If the company had wished to limit the vitality of the coverage on Mr. Land's life to the period while he continued as a dependent spouse, it should have done so by appropriate provision in the insurance contract.
In the absence of such provisions within the insurance contract here construed, indicating that the right of Mrs. Land, the plaintiff, to the proceeds of the policy was conditioned upon the continuance of the marital relationship, we are compelled under the familiar rule referred to above to reverse the holding of the lower court and remand the cause for trial. | 5ab7b846d93a87a84671d841934b839ff1b68d83b5bd275bbc7ae67719726246 | 1954-05-19T00:00:00Z |
1fb03c18-2938-463c-b00b-ad32185f4984 | Southern Pacific Co. v. Heltzel | 201 Or. 1, 268 P.2d 605 | null | oregon | Oregon Supreme Court | Reversed March 31, 1954.
*4 Frank C. McColloch argued the cause for appellants. With him on the briefs were Koerner, Young, McColloch & Dezendorf, Edwin L. Graham and Joseph Larkin, of Portland.
Robert R. Hollis, Assistant Attorney General, argued the cause for respondent Charles H. Heltzel, Public Utilities Commissioner of Oregon. With him on the brief were George Neuner, Attorney General, John R. McCollough and Wallace G. Mills, Assistant Attorneys General, of Salem.
William B. Adams and Arlus C. Morris, of Portland, filed a brief for respondent Pacific Inland Tariff Bureau, Inc.
REVERSED.
ROSSMAN, J.
This is an appeal from an order of the Circuit Court for Marion County which dismissed a petition *5 for a writ of prohibition. The petition prayed that a writ issue directed to the Public Utilities Commissioner of Oregon (ORS 756.020) prohibiting him from conducting a hearing into the reasonableness of some tariffs which two of the petitioners had filed lowering the rates for the transportation of petroleum products by rail to points in Southern Oregon, from Portland on the one hand and from Coos Bay-North Bend upon the other. The petitioners (now appellants) are the Oregon, California & Eastern Railway, the Southern Pacific Company and their general agent. Since the general agent is immaterial to any issue before us, we need mention him no further. For the purposes of convenience we will refer to the petitioners as the railroads.
The complaint which instituted the proceeding before the Commissioner was filed by the respondent-intervenor Pacific Inland Tariff Bureau, Inc., an association composed of more than 400 motor carriers which are engaged in both intrastate and interstate commerce. We will refer to that organization as the Bureau. Thirty-four of its members are engaged in the transportation of petroleum products, and 21 of that group have destination points in Southern Oregon. Those carriers serve some of the persons and localities which are also supplied by the railroads. But, in addition to serving customers and points reached by the railroads, they supply others in Southern Oregon that have no rail connections. The complaint, in referring to the oil depots from which the motor carriers that transport petroleum products receive these shipments, says: "Many of the bulk plants in Southern Oregon either are in cities off-rail or are off-rail in cities which themselves are on rail." We include that excerpt in this opinion because it shows that many of the shippers *6 and receivers of oil products in Southern Oregon do not use the railroads' facilities, but depend exclusively upon motor carriers.
Neither the Bureau nor any of its members ships or receives petroleum by rail. The motor carriers and the railroads receive in Portland and North Bend some of the oil which they distribute to consignees in Southern Oregon. But the motor carriers also receive in some cities which are not reached by any railroad, such as Crescent City, California, petroleum products which they transport into Southern Oregon. Crescent City is 50 miles or so from any railroad. Oil is transported by ocean-going barges from San Francisco Bay points to storage tanks which are located in that city, and later the motor carriers transport it from the tanks to consumers in the southern part of this state.
The foregoing shows that the routes pursued by the motor trucks and the railroads do not always parallel one another. It also shows that the persons and localities served by the railroads and the motor carriers are, in many instances, different. In fact, the arguments made by the parties indicate that, in most instances, they are different. Evidently few buyers of petroleum products patronize both the railroads and the motor trucks. But the Bureau contends that, notwithstanding the differences of which we have taken notice, the persons and places served by the motor carriers and those served by the railroads are in competition with each other. It urges that a rate unduly low granted by the railroads to petroleum users is prejudicial even to persons served only by the motor carriers. It does not confine that argument to places and persons which are actually competitive, but extends it to all places and persons equidistant from the place of origin of the shipments.
*7 In making its attack upon the aforementioned tariffs, the complaint presented by the Bureau to the Commissioner alleged that the new rates "constitute substantial reductions below the previously existing rates. * * * Such reduced rates are unjust and unreasonably low and they are not compensatory; have caused and will continue to cause substantial and undue loss of revenue to complainant's members and to other rail carriers * * *; and do not contribute a fair share towards the revenue of the defendants." The following is the detailed information which the complaint submits:
Further, according to the complaint filed with the Commissioner,
On behalf of a concern entitled Oil Terminals Company, which constructed the oil storage tanks in Crescent City which we mentioned, a statement was presented which alleged:
The Acme Transportation, Inc., a motor carrier which distributes oil from the Crescent City storage tanks to points in California and Southern Oregon, alleged:
The respondents (the Commissioner and the Bureau) contend that § 113-140, OCLA, which is now ORS 760.510, 760.515 and 763.170, authorized the Bureau to present, and the Commissioner to consider, the complaint which we just reviewed. In their efforts to show that the lowered rates are unjust and unreasonable, the respondents depend upon § 113-103, OCLA (ORS 760.015). They base their claim that the rates are discriminatory to a particular description of traffic (petroleum products) upon § 113-125, OCLA (ORS 760.175)
When the complaint was set for a hearing by the Commissioner, the railroads objected that he lacked jurisdiction to hear the cause. They argued that the Commissioner has no jurisdiction to revise rates upwards over the protests of the carrier that filed the tariff. Upon rejection of the contention, the railroads instituted this suit. After a hearing on the return to the alternative writ of prohibition, the circuit court set aside the writ and dismissed the proceeding. The *10 court was of the belief that a rate which is not compensatory is an unjust charge within the contemplation of § 113-103, OCLA (ORS 760.015) and that such a charge subjects the descriptions of traffic to which it is applicable to undue and unreasonable prejudice in violation of § 113-125, OCLA (ORS 760.175). The court, in making the ruling, expressed the belief that "the common law writ of prohibition is an available remedy in Oregon." No evidence was taken in the circuit court. The latter's ruling was based upon the petition for the writ, the return thereto and the other documents which we have mentioned. They showed the facts indicated above. The foregoing sufficies for present purposes as a statement of the facts and the contentions.
The availability in Oregon of prohibition has not been made the subject of cross-appeal. The respondent Commissioner explains that since the circuit court's order of dismissal was in favor of the respondents, they could not cross-appeal had they wished to do so. The Commissioner makes it clear that he is in accord with the circuit court's holding that the remedy of prohibition is obtainable in Oregon. The brief which he filed in this court terms the writ a "salutary device * * * an integral part of effective judicial process." Anticipating that possibly someone might argue that the writ is not a part of Oregon procedure, the Commissioner's brief says that "a disservice would be done should such an argument find favor with this court."
The Commissioner's brief delivers an effective argument in behalf of prohibition; it begins with this statement:
The other respondent (the Bureau) does not question those views.
No express provision is made in our statutes for the writ of prohibition which is commonly classified as an extraordinary remedy. This court has never been called upon to determine whether or not the remedy is a part of the judicial machinery of this state.
The following has often been described as a good definition of prohibition and a delineation of its purposes:
State v. Ward, 70 Minn 58, 72 NW 825.
According to 42 Am Jur, Prohibition, § 1, p 138:
We have mentioned the fact that prohibition is an extraordinary remedy.
Ferris, Extraordinary Legal Remedies, § 307.
According to Glanville, the function of prohibition was to preserve the king's prerogative. It was originally issued only by the King's Bench and was directed to other tribunals directing them to cease hearing causes which were properly heard only in the court of King's Bench. Later, when the writ was also issued by the chancellor, it was returnable to the King's Bench only. Still later the prerogative aspect of the writ diminished as the jurisdiction of the earlier rival courts was better defined and thereupon the remedial nature of the writ was expanded.
High, Extraordinary Legal Remedies, 3d ed, § 764a, says:
The following is taken from Spelling, Injunctions and Other Remedies, 2d ed, § 1717:
The authorities are in accord that the writ must be based on the absence of jurisdiction in the tribunal which is under attack. They are agreed that that is the only attack which the writ can make upon the action taken below. High, supra, § 767. The conditions for the issuance of the writ are stated by the authority just mentioned as follows (§ 764a):
Ashley v. Wait, 228 Mass 63, 116 NE 961, 8 ALR 1463, referring to prohibition, declares:
See, also, Kevorkian v. Judges of the Superior Court, 295 Mass 355, 3 NE2d 742, and People ex rel. v. Municipal Court of Chicago, 359 Ill 102, 194 NE 242.
We now quote from Culver Contracting Corporation v. Humphrey, 268 NY 26, 196 NE 627:
*15 For a further discussion of the general nature of prohibition and the circumstances under which it is available, see 26 Georgetown Law Journal 831, the extensive annotation in 111 Am St Rep 929, and People ex rel. v. Municipal Court of Chicago, 359 Ill 102, 194 NE 242.
In Quinby v. Public Service Commissioner, 223 NY 244, PUR 1918D 30, 119 NE 433, 3 ALR 685, the court, after declaring, "In the absence of clear and definite language, conferring without ambiguity, jurisdiction upon the Public Service Commission to increase rates of fare agreed upon by the street railroad and the local authorities," the Commission had no jurisdiction to grant increases, held that "prohibition is the proper remedy." Accordingly, where an administrative tribunal lacks statutory authority for the course in which it proposes to engage, prohibition, if otherwise available, may be the appropriate remedy.
Constitution of Oregon, Art VII, § 1, says:
That provision, which vests in this court the judicial power, is similar to Constitution of United States, Art III, § 1.
In view of the absence of any mention of prohibition in Oregon statutes, we must determine whether the remedy nevertheless exists in this state. It is beyond question that some powers of the courts may be curtailed by the legislature. For example, the writ of injunction has been noticeably restricted in recent years as a remedy in some kinds of cases. According to the official annotator of the Constitution of the United States, courts have generally adopted the view *16 that writs must have some statutory authority. See Constitution of United States, Annotated, 1952, p 522. Against this we have the theory of "inherent" power of the courts to make effective their jurisdiction.
1, 2. We have taken notice of Art. VII, § 1, Constitution of Oregon. That provision, according to Thompson v. Multnomah County, 2 Or 34, "affirms the common law." Prohibition, as we have seen, was a part of the ancient common-law procedure. A holding directly to that effect, which traces the writ into antiquity, is Carpentertown Coal & Coke Co. v. Laird, 360 Pa 94, 61 A2d 426. See, to the same effect Ex parte Cross, 247 Ala 85, 22 So2d 378, and Ferguson v. Ferguson (Tex), 98 SW2d 847. Original Article VII, § 9, Constitution of Oregon, and § 13-715, OCLA (ORS 1.160) may well afford additional legislative background for the issuance of a writ of prohibition. The former "vests the circuit court with supervisory control over all inferior courts." Yankey v. Law, 71 Or 58, 142 P 336. Since the writ of prohibition is directed solely at the unwarranted exercise of judicial or quasi-judicial power when no justification therefor exists, we think that, in the absence of express legislative denial, a holding is demanded that the writ is available in this state as a means whereby a superior court may confine inferior tribunals to the powers which they actually possess.
Having expressed our belief that prohibition is available in this state and having described the conditions which are necessary for its exercise, we shall now determine whether or not conditions exist in this case that are essential to the issuance of the writ.
3, 4. The respondents contend that since the railroads could challenge by appeal any order adverse to them which the Commissioner might enter at the conclusion *17 of the hearing, the availability of appeal denies to them the remedy of prohibition. The manner of challenging in the circuit court an order entered by the Commissioner is by a suit against the Commissioner. See §§ 112-454 and 112-4,119, OCLA (ORS 757.565 and 756.580). The suit is tantamount to an appeal. The authorities recognize that appeal is sometimes sufficient to render prohibition unattainable. "Like all other extraordinary remedies, prohibition is granted only in cases where the usual and ordinary forms of remedy are insufficient to afford redress." High, supra, § 770. The same authority, in § 771a, continues: "If, however, it is manifest that an appeal from the action of the court would afford an inadequate remedy the right of appeal does not, of itself, afford sufficient ground for refusing relief by prohibition."
Ferris, Extraordinary Legal Remedies, §§ 322 and 323.
As stated in a preceding paragraph, the railroads at once objected when the Commissioner announced an intention to conduct a hearing upon the complaint which the Bureau had filed. The objections were timely. Presently they were rejected. Thus the railroads embraced the procedure which many courts deem essential to the later prosecution of a suit for prohibition. *19 State ex rel. Poston v. District Court, 31 Wyo 413, 227 P 378, 35 ALR 1082 annotated.
5-7. Disregarding the expense which the railroad would incur incidental to a hearing conducted by the Commissioner, the remedy by appeal from an order of the Commissioner adverse to the railroads would be inadequate. Section 113-150, OCLA (ORS 760.575) provides that an order of the Commissioner shall be effective until reversed or modified upon appeal. Unlike the usual effect of an appeal, the order is operative after its entry and until set aside upon appeal, assuming that it would be eventually set aside. It is true that § 112-455, OCLA (ORS 757.570 and 757.580) and § 112-4,120, OCLA (ORS 756.590) grant the circuit court discretionary power to stay, pending appeal, the operation of an order issued by the Commissioner. The latter of the two sections uses these words, "upon the giving of such bond or other security, or upon such conditions as the court may require". It adds that the "bond shall be executed in favor of the commissioner for the benefit of whom it may concern and may be enforcible by such commissioner, or any person interested in an appropriate proceeding." Section 112-455, OCLA, which is in similar vein, renders the utility and the surety liable "for all damages caused by the delay in the enforcement of the order of the commissioner." Further, it says:
The court's power upon appeal to stay the operation of the Commissioner's order is a discretionary one *20 (State ex rel. v. Duncan, 191 Or 475, 230 P2d 773) and mandamus will not issue to control the exercise of the discretionary power (State ex rel. v. Duncan, supra).
From the above we see that the remedy of appeal is not available to a railroad or other public utility until the Commissioner has exercised the questioned power, has conducted a hearing and has issued an order. Appeal does not enable a railroad to obtain a ruling from the courts as to the Commissioner's jurisdiction until after the Commissioner has issued an adverse order. The latter has immediate effect. In contrast to that situation, prohibition offers a means whereby the Commissioner's power to make a contemplated order can be determined before he exercises his challenged power. For the purpose of carrying our analysis further, let us now assume that prohibition is denied in this case, and that thereupon the Commissioner conducts a hearing into the reasonableness of the railroads' challenged tariffs, culminating eventually in the issuance of an order which sustains the attack made upon the tariffs by the Bureau. Let us also assume that the Commissioner's order commands the railroads to increase materially their rates. If upon that juncture the railroads asked for judicial review of the legality of the Commissioner's order they could petition the court to grant them the stay authorized by § 112-4,120, OCLA (ORS 756.590). However, their prayer for a stay would be addressed to a discretionary, not a plenary, power. If the court exacted from the railroads a bond "for the benefit of whom it may concern * * * enforcible by said commissioner, or any person interested" as a condition to granting a stay, no imagination is required to make one realize the momentous liability which the bond would represent. As we have seen, 21 motor carriers which *21 belong to the Bureau are engaged in the transportation of petroleum products in this state. If the court, after judicial review of the Commissioner's order, affirmed its validity and the motor carriers instituted action upon the stay bond, the consequences to the surety and to the railroads could be grave. Of course, if the tariffs which the railroads have filed with the Commissioner are unwarranted, the railroads, and not the motor carriers, should suffer the consequences. But that is not the issue before us. The present issue is this: Is appeal as adequate a remedy in instances of this kind as prohibition.
We think that the above analysis shows that prohibition can serve the purpose of justice in this case much more effectively than appeal. In making that statement we have not lost sight of the fact that prohibition, if abused, may be employed as a means of arresting hearings and investigations which the Commissioner may wish to conduct in the performance of his duties. When improvidently issued, the writ can render the Commissioner's power impotent. But the writ is not available to anyone as a matter of right, but only of discretion. By discretion is meant that a court should approach the issuance of the writ with the same caution, circumspection and concern for consequences as is exercised by a prudent person who is about to engage in an undertaking which may involve the interests of many people in serious sequels. Piecemeal decision of rights and of cases should generally be avoided. That is an axiom which should not be forgotten when it is sought to thwart an investigation by a writ of prohibition. Also worthy of consideration is the fact that the power which the Commissioner proposed to exercise when he met with the writ is one which has been the subject of very little judicial decision *22 over the years, except in instances where the power was conferred by unambiguous statutes. In this state our legislation which regulates railroads and invests the Commissioner with his power had its genesis in 1907, yet there is a dearth of utterances by this court upon the question as to whether or not the Commissioner can order a railroad, against its will, to increase a tariff which it has filed. Obviously, the issue as to whether or not the respondent Commissioner has power to compel a carrier to increase its rates is one of importance to the official, to all public utilities and to the people themselves. If the railroads which are parties to this case cannot lower their rates when they believe that necessity so demands, they may sustain grave injury pending the hearing and subsequent litigation with the Commissioner, in the event that he issues an order adverse to them.
The circumstances of which we have taken notice persuade us that this is a proper case for prohibition. Being so satisfied, we will not pass on to the other phase of the case; that is, to the question as to whether or not the Commissioner has the power to compel a railroad, against its will, to charge a larger sum than that entered in a tariff which it employed.
In their brief the railroads make three contentions: (1) The Commissioner has no power to fix minimum rates; (2) the rates entered in the challenged tariffs could not possibly be in violation of § 113-125, OCLA (ORS 760.175) under the facts developed in the record; and (3) the Commissioner could not entertain the complaint submitted by the Tariff Bureau because its members are not in the class protected by the statutory provisions which we have mentioned.
8, 9. Since this case is one of prohibition, the question of whether or not the Bureau was a proper party *23 to lodge a complaint with the Commissioner is not properly cognizable. Further, prohibition is not concerned with every defect in jurisdiction, but with the power of the judicial or quasi-judicial body to act at all.
The original railroad act was adopted in this state in 1907. See Oregon Laws 1907, ch 53.
The complaint before the Commissioner was brought under § 113-140, OCLA (ORS 760.510, 760.515 and 763.170). The following are the parts of that section which are material to our purpose:
The sections of our laws which define the terms "unreasonable" and "unjust discrimination" and upon which the Bureau relies are §§ 113-103 and 113-125, OCLA (ORS 760.015 and 760.175). They are, respectively:
10. The power which the Commissioner has is that given by the legislature. He has no other. The fact that the Commissioner has been given some power to act in some areas of utility regulation does not imply that he may exercise all the power that the legislature might have exercised had it chosen to act directly. Even though there may be a general belief abroad that conditions have greatly changed since the year 1907 and that present day conditions call for the exercise of greater powers, the legislative grant cannot be enlarged other than by the legislature. It is for this court to determine what power the legislature has granted, not what the legislature might grant. The issue is then whether the Commissioner has the power to prescribe a minimum rate for a particular description of traffic.
Nothing in § 113-140, OCLA (ORS 760.510, 760.515 and 763.170) apparently limits the power of the Commissioner to alter rates upward or downward when he finds that a tariff filed by a carrier imposes an unreasonable *25 or unjust discrimination, fare, charge or classification. Standing alone, this section gives the Commissioner, when he has found a violation of the act, the power to increase or decrease rates so as to make them reasonable and nondiscriminatory. Therefore, if a reduction by a railroad of the rate upon a classification of traffic constitutes an unjust discrimination or must be deemed unreasonable, it is our duty to affirm the trial court, as the Commissioner would then have jurisdiction to determine whether such unreasonableness or discrimination does, in fact, exist.
The words "unreasonable" and "unjust discrimination" cannot be given a subjective meaning in a statute. The legislature did not and could not have meant that a rate was illegal and thereby subject a railroad to criminal sanctions if someone had a sincere conviction that the rates were "unreasonable" or "unjustly discriminatory". That someone may feel injured or actually be injured by a tariff cannot furnish the test or content of the words. There are no rights that a citizen may exercise without prejudicing someone. When a voter goes to the polls and votes for his choice, the latter's opponent is injured by having his opportunities lessened. If a man goes to work to provide the necessities of life for his family, another is prevented from possessing that job. When a carrier is entrusted with the transportation of a shipment of goods, competing carriers are denied that item of business. The rights enjoyed furnish the test of, but not the injury sustained.
What, then, is the meaning of "unreasonable" and "unjust discrimination"? Webster's New International Dictionary, 2d ed, defines "unreasonable" as "not conformable to reason, irrational; * * * Beyond *26 the bounds of reason or moderation; immoderate, exorbitant." "Discrimination" is given the following meaning by the same authority: "A distinction, as in treatment; esp., an unfair or injurious distinction. Specif., arbitrary imposition of unequal tariffs for substantially the same service; the difference in treatment may be between persons, localities or class of traffic, in respect of substantially the same service."
11. The words must be taken in view of the political, economic and social ideas that prevailed at the time of the enactment of the statutes. Amendments and rejected amendments must be viewed as of the time of their consideration, and the act as a whole must be considered throughout the period of amendment as representing the legislation which the legislature believed this state needed.
12. The political, economic and social convictions that prevailed at that time, and we think now also, were and are based upon a conviction that our people should have the maximum liberty to pursue their own affairs. The limits were drawn where the exercise of individual volition encroached upon the equal rights of another. Government was regarded as a means of protecting those rights, but not as a device whereby every individual should be subordinated to a function. No purpose was entertained to achieve the perfect state of social equality and organization which is exemplified in an ant or bee colony. Neither the Constitution of the United States nor that of Oregon is a mere collection of anachronisms of a discarded philosophy. Our constitutions are more than the frameworks of governments. They establish and guarantee rights which they place beyond the power of a temporary majority, parliamentary or otherwise, to abridge.
*27 We have seen that § 113-103, OCLA (ORS 760.015) provides:
Section 1 of the Interstate Commerce Act of 1887 read as follows:
It will be observed that both acts say "charges made for any service rendered or to be rendered in the transportation of passengers or property, * * * shall be reasonable and just; and every unjust and unreasonable charge for such service is prohibited and declared to be unlawful."
In 1888, 19 years before our legislative assembly adopted our act containing the provision which we just quoted, an issue substantially similar to the one now before us was resolved in a carefully prepared decision of the Interstate Commerce Commission entitled In re The Chicago, St. Paul & Kansas City Railroad Company, 2 Interstate Commerce Commission Reports 231. The chairman of the Commission at that time was Judge Thomas M. Cooley. Judge Cooley was the author of the opinion. From it we quote the following:
The foregoing is convincing evidence that the purpose of the act which created the Interstate Commerce Commission was not "to protect railroad corporations against the misconduct or the mistakes of their officers, or even primarily to protect such corporations against each other." In developing the meaning of the phrase "just and reasonable", Judge Cooley engaged in an observation so germane to the issue now before us that we will quote it again:
He declared that if such a proposition had been made, it would not have been "seriously entertained in Congress", but would have been spurned as "little short of impertinent intermeddling."
According to Hammond Lumber Co. v. Public Service Commission, 96 Or 595, 189 P 639, our statute was *31 patterned upon a measure adopted in Wisconsin. In 1908 Minneapolis, St. P. & S. Ste. M. Ry. Co. v. Railroad Commission, 136 Wis 146, 116 NW 905, 17 LRA, NS 821, analyzed at length the powers over rates and service which were entrusted by the Wisconsin act to the railroad commission created by it. The majority opinion, which was written by Justice Timlin, contained this passage:
Justice Marshall of the court wrote a specially concurring opinion in which one other member concurred; it said:
We are aware of nothing in any previous ruling by this court which is out of harmony with the statements which we copied from the two decisions just reviewed. *32 The respondents' brief quotes extensively from Portland Railway, Light & Power Co. v. Railroad Commission, 56 Or 468, 105 P 709, 109 P 273. See the same case: 229 US 397, 57 L ed 1248, 33 SCt 820. That decision did not hold that this state's regulatory agency has power to prevent a carrier from lowering a rate. The agency, in the instance before this court in that case, after finding that the fares charged by the carrier for two hauls of approximately equal length were different and that the lower of the two charges was reasonable, ordered that the higher charge should be reduced to the amount of the lower.
The statute adopted by our legislative assembly in 1907 for the regulation of railroads has been little changed since its enactment. In 1941, while this court was considering Union Pacific Railroad Co. v. Bean, 167 Or 535, 119 P2d 575, in which we eventually held that the Public Utilities Commissioner "had no authority to suspend proposed reduced rates" pending appeal, a bill known as Senate Bill No. 213, was introduced before the 1941 legislative assembly which proposed to grant to the Commissioner the power to fix minimum as well as maximum rates. The measure was rejected; see Senate and House Journal, 1941, p 628. The title of that bill was:
The bill sought to amend § 113-116 so as to make it read:
The bill sought to amend § 113-140 so as to change its terms into:
The bill attempted to introduce into § 113-149 a similar provision, particularly this:
In the 1953 legislative session another effort was made to grant the Commissioner power to prescribe minimum as well as maximum rates. The measure was known as Senate Bill No. 319. The proposal failed. See Senate and House Journal, 1953, p 871. The title of that bill read as follows:
*34 The measure sought to repeal § 113-116, OCLA, and in its stead adopt a provision granting to the Commissioner amplified powers, including this:
Thus two efforts to grant to the respondent Commissioner specifically the powers, which it is now asserted he possesses, were defeated. We do not believe that the two rejected bills represented nothing more than restatements of existing law.
Upon the national scene the course of events has been materially different. The Interstate Commerce Act has been amended several times. In 1920 Congress adopted the measure known as the Esch-Cummins Act (41 Stat 456) which gave the Interstate Commerce Commission power to prescribe "maximum or minimum, or maximum and minimum" rates to be charged by carriers. It will be recalled that in 1888 Judge Cooley, in writing the opinion in In re Chicago, St. Paul & Kansas City Ry. Co., supra, declared that if an effort had been made to include in the Interstate Commerce Act when it was presented to Congress a provision giving the Commission control over minimum rates, the attempt would have been defeated as "impertinent intermeddling." Virtually a third of a century had to pass before a proposal to confer upon *35 the Commission power over minimum as well as maximum rates could succeed. In that period the Commission gained in public favor and came to be regarded as a very useful arm of the government. In the meantime, the carriers, which at the outset had viewed the Commission with ill-concealed disfavor, had become domesticated and had decided that, in lieu of opposing the Commission, they would live with it.
Notwithstanding the fact that Congress conferred power over minimum rates upon the Interstate Commerce Commission in 1920, 21 years later, as we have seen, our legislature declined to grant similar power to our regulatory agency, and 33 years later again refused to do so. In 1933, when our legislative assembly adopted the measure which subjected motor carriers to regulation by the Public Utilities Commissioner (Oregon Laws 1933, Special and Regular Session, Ch 429), it did not include within the statement of the Commissioner's power over rates the phrase, "maximum or minimum, or maximum and minimum to be charged" or any equivalent thereof. See, also, Oregon Laws 1933, Second Special Session, Ch 49, and Oregon Laws 1935, Ch 277, which amended the original enactment.
13. Frequently the rejection of a proposed amendment is deemed by the rules governing statutory construction as evidence of a legislative interpretation of the existing law. The courts cannot, however, always discern safely the reasons which persuaded legislative assemblies to reject measures, especially not if the amendatory act contains provisions dealing with several different subjects. The present instance, however, is one in which it seems safe to discern, in the defeat of the amendatory bills, the attitude of the legislature. The two rejected bills were separated from one another *36 by a long span of years. Each of the disapproved measures contained language borrowed verbatim from an amendment to the Interstate Commerce Act. The second of the unsuccessful measures was confined largely to minimum rates. Further, the omission of the legislature to have included in the act which subjected motor carriers to regulation the clause "maximum or minimum, or maximum and minimum" strengthens the evidence afforded by the rejection of the amendments. From State v. Chicago & N.W. Ry. Co., 147 Neb 970, 25 NW2d 824, we take the following:
We are satisfied that the rejection of the two amendatory bills is evidence that the legislature did not wish the respondent Commissioner to have power over minimum rates. See, also, 82 CJS, Statutes, § 360, p 790, and 50 Am Jur, Statutes, § 330, p 322.
In 1940 Congress codified the acts regulating railroads, water carriers and motor carriers. See 54 Stat.L. 898. In making the codification it included in the enactment the following policy statement:
One of the sections of the act reads, in part as follows:
Washington, to the north, has adopted legislation (§ 10422 Rem Rev Stats) reading as follows:
California, to the south of us, has legislated in similar vein. See Ch 700, Stats 1935, §§ 13 1/2 and 32 1/2 of the California Public Utilities Act. One of its provisions reads as follows:
A further section of the act directs the Commission, whenever it finds that
If the Commissioner possesses the power which he claims and can compel a carrier, over its protests, to raise its charges so that competing carriers or other forms of transportation will not be forced out of business, his power will be comparable to those possessed by the California and Washington regulatory bodies. Although in those states the power has been given by express legislation, in this state, if we sustain his contentions, the Commissioner will find his source of power in judicial construction.
The power under scrutiny, if it is possessed by the Commissioner, will materially alter the nature of his office. He will not be merely a regulator of rates, but will have some of the powers of a coordinator of transportation. To illustrate what we have in mind, we shall take the present case as an example. According to the complaint which the Bureau presented to the Commissioner, the appellant railroads wish to lower "the character of the commodity" (petroleum) which is the subject matter of the challenged tariffs. The complaint describes petroleum as a "relatively high-grade" commodity. Evidently, since the railroads classify petroleum as a "relatively high-grade" commodity, they *40 charge more for its transportation than for other items which are not of an equally high grade. We infer from the averments just reviewed that the appellant railroads, in filing the challenged tariffs, propose to charge for the transportation of petroleum rates akin to those of lower grade commodities. Possibly they are prepared to get along with less revenue; or maybe they hope that lower rates will win for them a larger volume, resulting ultimately in greater revenue. If the Commissioner has the power to prevent the railroads from pursuing their intended course, he will have no guidance, in the exercise of his great power, from any enactment of the legislature. The absence of any legislation upon such an important subject is evidence that the power has not be conferred.
14. There can be little doubt that the purpose of our act at the time of its adoption was not (1) to prevent the impoverishment of the railroads by their own improvidence; (2) to integrate the transportation system of this state; or (3) to confer upon the regulatory agency the powers of a coordinator of transportation. The reasons which induced the legislature to enact the measure were to achieve a means whereby the state could cope with some evils which had crept into the operating practices of the railroads. Those evils were of two major kinds: (a) discrimination between shippers whereby the large and important ones were given reduced rates, outright or by rebates, and (b) discrimination against some localities which lacked competing transport facilities.
Railroads are still enterprises conducted by individuals for profit. They are regulated to prevent abuses, not to make the state the manager of their properties. In Interstate Commerce Commission v. *41 Chicago Great Western Railway, 209 US 108, 52 L ed 705, 28 S Ct 493, the court said:
The philosophy of the regulating acts, not only of Oregon but elsewhere, has not been to eliminate competition. It is for this reason that general rate levels are established which may be varied downward to meet competitive conditions. The dealings with particular rates have been to correct discriminations and unreasonable charges rather than to integrate the transport systems. In Indian Valley Railroad v. United States, 52 F2d 485, a case involving construction of a new line, *42 the court, in referring to the Federal Transportation Act of 1920, said:
Even discriminations in charges not commensurate with the distance involved have been upheld in view of the necessity to compete. In Barringer & Co. v. United States, 319 US 1, 87 L ed 1171, 63 S Ct 967, the court said:
15. The term "unreasonable" having the connotation of excessive the standard being a reasonable return on the property cannot be applied to a rate because it is not compensatory or because other methods of transport cannot meet it. The regulatory acts do not undertake to underwrite the success of a carrier. As a business proposition, a carrier is on its own. While a carrier cannot be forced to haul at a noncompensatory rate, it may do so if it wishes. The right to earn a reasonable return on its property is its right alone and cannot be claimed by others for their own benefit. It is the nature of competition that some will not fare as well as others.
16, 17. We have mentioned the claim that the lowered rates are discriminatory. Section 113-125, OCLA *43 (ORS 760.175) specifies two classes of unjust discrimination. A railroad is guilty of unjust discrimination when it (1) makes or gives any undue preference or advantage to any particular person, firm or corporation, and (2) subjects to any undue or unreasonable prejudice or disadvantage any particular person, firm or corporation or any particular description of traffic. Thus the giving of an undue preference or advantage to any particular classification of traffic is not made an unjust discrimination. Even if we were to avoid the clear language of the statute, it could not be inferred consistently with the theory of the act that such a preference was unlawful. As we indicated earlier, the act is designed to prevent abuses, not to substitute public management. While in going out for business a railroad may not give lower rates to particular individuals, it may attempt to induce new business by lowering the rate for a certain kind of freight. The prohibition in the statute is to prevent attempts by a railroad to discourage any particular class of freight by too high rates or inadequate service. Its purpose is to enforce the requirement that a railroad, as a common carrier, accept all reasonable freight which might be rendered ineffective by placing some disadvantage upon that class of freight although nominally standing willing to accept that. In Valley & Siletz Railroad v. Thomas, 151 Or 80, 48 P2d 358, it was noted:
There is no substance to the claim that off-rail points are discriminated against because the trucks cannot meet the railroad rate for equal distances. This *44 is little more than a variation in the claim that rates are unlawful if trucks cannot meet them profitably. As railroads are not obliged to serve places their lines do not reach, a railroad cannot discriminate against places it does not serve.
We have not in the past lightly inferred merely because a comprehensive system of regulation has been established that, therefore, the power has been given to establish minimum rates or prices. The legislature does not lightly treat such power, nor do we. In Sunshine Dairy v. Peterson, 183 Or 305, 193 P2d 543, this court upheld an injunction restraining the director of agriculture from enforcing an order directing that milk in fiber containers be sold for one cent more than milk sold in bottles. The statute there provided for the fixing of minimum milk prices, wholesale and retail, in four categories. Mr. Justice BRAND, speaking for the court, said: "Standing alone, the grant of power to supervise and regulate the industry, including production, sale, etc., would not authorize price fixing."
18, 19. Without resort to further analysis, we express our conviction that the act does not authorize the respondent Commissioner to prescribe minimum rates nor to order a railroad, against its will, to increase a tariff which it has filed.
The judgment order of the circuit court which dismissed the proceeding for a writ of prohibition is reversed. The cause is remanded to the circuit court with orders to grant the writ. | d350f6b8bd58b254c97296066b443929745d96e5ca023d5933aa9ab96d8407c4 | 1954-03-31T00:00:00Z |
98fb56d2-39f5-43c4-8a93-3b57aaa57867 | In Re Estate of Nawrocki | 200 Or. 660, 268 P.2d 363 | null | oregon | Oregon Supreme Court | Reversed and remanded March 24, 1954.
*661 George L. Hibbard, of Oregon City, argued the cause for appellant. With him on the brief were Beattie & Hibbard, and John C. Caldwell, all of Oregon City.
Clifford S. Beckett, of Oregon City, argued the cause for respondent. With him on the brief were Butler, Jack & Beckett, of Oregon City.
*662 Before LATOURETTE, Chief Justice, and WARNER, LUSK, BRAND, TOOZE and PERRY, Justices.
REVERSED AND REMANDED.
BRAND, J.
On 13 February 1945 the testator Casimir F. Nawrocki executed a will by which he devised real property to his wife Mary E. Nawrocki in lieu of dower. On 23 August 1950 he executed a mortgage on the same property, his wife joining therein for his accommodation. The testator died on 29 June 1951. The estate was admitted to probate and an executor was appointed. His widow filed an election to take under the will in lieu of dower and prayed for an order directing the executor to satisfy the mortgage debt from the residue of the estate and thus to exonerate the devised property therefrom. Testimony was introduced in behalf of the petitioner and in support of her petition. The executor, and thereafter the circuit court, denied relief. The petitioner appeals.
The executor, who is respondent, presents a question of law only. The material portions of the will are as follows:
The petition for exoneration shows that the mortgage was in favor of the State Bank of Milwaukie to secure a promissory note in the sum of $6,000. The total appraised value of the property, real and personal, was $47,383.22. The property devised to the plaintiff was appraised at $15,000. We quote:
The legal question presented is whether a specific devise of realty carries with it the right to have the land exonerated from a mortgage executed by the testator to secure his own debt, provided there is sufficient other property not specifically devised out of which such exoneration may be made.
The defendant concedes that the rule of exoneration applied at common law, but argues that the rule has been changed by OCLA, § 18-303, which reads as follows:
In support of her asserted right of exoneration the plaintiff cites the following Oregon decisions: Marshall v. Middleton, 100 Or 247, 191 P 886, 196 P 830; Estate of Hodgkin, 110 Or 381, 221 P 169, 223 P 738; Ladd & Bush Trust Co. v. Kurtz, 169 Or 225, 127 P2d 732. The defendant seeks to distinguish the cases cited on the ground that the statute deals only with encumbrances created after execution of a will. He points out that the encumbrances in all three of the cases cited were created prior to the execution of the will. The point is well-taken, but the cases cited do throw some light upon the issue.
In Marshall v. Middleton, supra, a devisee sought an order directing that land which had been specifically devised to him by the testator be exonerated from a mortgage lien by payment out of the residue of the estate. The devisee relied upon the provision of the will that "all just debts be paid * * * in the course of administration of my estate." This court said that:
*665 The facts were that the predecessor in title of the testator had executed a purchase money mortgage and the testator bought the property subject to the mortgage before he made his will. A suit had been instituted before the death of the testator to foreclose the purchase money mortgage. It was held that the testator was not indebted at all on the mortgage at the time of his death, and for that reason the rule of exoneration did not apply.
In Estate of Hodgkin, supra, the testatrix and her husband borrowed money and executed mortgages as security. It was alleged that the money was used by her husband for living expenses of his family and that the debt was really his debt and not that of the testatrix. Apparently this court so found, for it said that the property was mortgaged "not for her debt, but for the joint and several obligations of both." The mortgage was executed before the execution of the will, but that was not the basis of this court's decision. We quote:
The court then held that there was no residuum because the will specifically devised all of the rest of the estate in trust for specified purposes. It was for this *666 reason that the court held against the right of exoneration.
The rule set forth in Estate of Hodgkin was reaffirmed in Ladd & Bush Trust Co. v. Kurtz, supra, but was found inapplicable to the facts of that case.
1. While these decisions are not determinative in the case at bar, they are significant. They recognize that aside from statute, the common-law rule prevails in Oregon. They indicate that if real property is mortgaged for the debt of the testator and thereafter a will is made devising the mortgaged property, the devisee is entitled to have exoneration out of any residuum not specifically devised, if such residuum is sufficient for the purpose, and if no different intent appears in the will. If that be the rule as to devisees of previously mortgaged property, the same rule would undoubtedly apply in the absence of statutes where the will devised property which was free from encumbrance and a mortgage was subsequently executed. A will devising property which was unencumbered when the will was executed would indicate an intent that the devisee should enjoy it unencumbered. We quote:
To the same effect see 4 Page on Wills, Lifetime Ed, § 1486, p 296; and 57 Am Jur 993, Wills, § 1474.
*667 At early common law, and even after the adoption of the Statute of Frauds, certain "changes of estate" occurring after execution of a will operated as a revocation of a previous devise by operation of law. For example, if a testator, having devised realty, entered into a contract to sell it, it was held that the contract operated in equity as a revocation of the devise, because the contract transferred the equitable interest in the property to the petitioner. 1 Page on Wills, Lifetime Ed, § 488, p 901, and § 494, p 912. It is clear that this rule of the common law concerning the effect of contracts of sale was changed by our statute, OCLA, § 18-302 (ORS 114.140). See Pape v. United States National Bank, 135 Or 650, 297 P 485; In re Wilson's Estate, 85 Or 604, 620, 167 P 580; Watson v. McLench, 57 Or 446, 451, 110 P 482, 112 P 416.
Not every transaction dealing with land previously devised had the effect of revoking the will at common law. In the case of mortgages, even though the legal title passed to the mortgagee to secure the performance of the obligation, yet equity looked upon the transaction as creating a lien only. The lien was discharged upon the performance of the obligation, and the satisfaction of the mortgage did not result in a technical reacquisition of the property. Therefore, the conveyance by way of mortgage did not revoke the will previously made. The discharge of the obligation allowed the property to pass under the will. If not discharged, the devisee took the property subject to the lien of the mortgage. As authority we quote:
See also McTaggart v. Thompson, 14 Pa St 149 (1850); Perkins v. Walker, 1 Vernon 97, 23 Eng Rep 339 (1682); Hall v. Dench, 1 Vernon 329, 23 Eng Rep 501 (1685); Jackson v. Parker, Amb 687, 27 Eng Rep 447; 3 Jarman on Wills, pp 1904 and 1910.
Another rule of the common law of equal authority related to the right of a devisee who took subject to a mortgage to have exoneration from the undisposed-of residue.
2. In the case of mortgages placed by a testatrix against devised realty, the learned author states that it has been suggested as justification for the rule that the debt should be paid out of the personal estate, because the personal estate had the benefit of the debt. *669 4 Page on Wills, Lifetime Ed, § 1487, p 300. The same author says:
In the case at bar we think the first provision of the will directing that all just debts "be paid from the first money available from my estate" should be given weight, though it is not conclusive. Inventory of the estate shows $1,690 in a checking account, plus accounts receivable amounting to several thousand dollars, and other chattel property.
3. It is evident from the common-law background concerning implied revocation through "change of estate" that the statute here in question is not an abrogation of any common-law rule, but a codification thereof. The statute merely recognizes the rule that a subsequent mortgage does not amount to an implied revocation of a will, and the devisee takes subject, which is the common-law rule. But the doctrine of exoneration of devised realty from a mortgage was also applied at common law, as the defendant herein recognizes. It is hardly logical to say that the enactment of a statute which merely states a common-law rule has the effect of abrogating another common-law doctrine, where both rules were compatible at common law.
4, 5. The statute here considered relates to the validity of the will, and states that a devise of property which is subsequently mortgaged passes the interest of the testator. The rule of exoneration, on the other hand, *670 does not deal with the validity of the will, but sets forth a rule concerning the fund from which certain debts of the testator are to be paid. Both may exist side by side without inconsistency or conflict. In the pending case the residuary clause is in ordinary form and is not to be construed as a specific devise or bequest as was found necessary in Estate of Hodgkin, supra, where a specific devise of land was combined with the residue and the testator established a trust in both as a unit, with elaborate provisions for its execution.
The view that the statute here involved does not abrogate the common-law doctrine of exoneration is strongly supported in Matthiessen's Estate, 23 Cal App 608, 73 P2d 1267. That case presented a fact situation similar to the case at bar and required a construction of a statute of essentially the same import as the Oregon statute. The court there held that the statute had worked no change in the common-law rule of exoneration of the mortgaged realty. The California statute (Section 78 of the Probate Code) provided in substance that an encumbrance placed by a testator on property previously devised should not be a revocation of the devise, "but the property, subject to such charge or encumbrance, or the remaining interest therein, passes by the will." The California court quoted at length from Estate of Woodworth, 31 Cal 595, and Estate of De Bernal, 165 Cal 223, 131 P 375. The opinion is too long for extended quotation, but the uniform holding of the California cases cited is that:
It was also held that the statute "only enacted in express terms the rule of the common law upon the subject. * * *"
The apparent weight of authority is opposed to the conclusion of the California court. Upon analysis, however, the preponderance against the California decision is more apparent than real. In the case at bar, the defendant-testator cites Meyer v. Cahen, 111 NY 270, 18 NE 852, as supporting his position. In that case the indebtedness was incurred and a mortgage executed by the testator and a former wife in 1869. Thereafter he married the plaintiff and died in 1884, the mortgage debt still remaining. The mortgage was foreclosed against the land and plaintiff sought payment from the estate of the value of the mortgaged property at the time of the death of the testator. Three circumstances distinguish this case from the one at bar: (1) The mortgage antedated the will; (2) the residue consisted of both real and personal property which was devised and bequeathed to a trustee with elaborate specific provisions suggestive of the trust created in Estate of Hodgkin, supra; (3) the New York statute, instead of merely providing that the devises and legacies "shall pass and take effect subject to such charge or incumbrance" as provided *672 in the Oregon statute, went much further. The New York law provided that:
Under the wording of the New York statute it is apparent that the common-law rule concerning exoneration from a mortgage was abrogated. It is otherwise under the wording of the Oregon statute which merely codifies the common-law rule that, as between the devisee of the mortgagor and the mortgagee, the former takes subject to the mortgage, but with the right of exoneration from the estate. The defendant places great reliance on the case of Hannibal Trust Co. v. Elzea, 315 Mo 485, 286 SW 371. In that case the statute was identical to our own. The will devised land to the testator's niece, the defendant. Thereafter the land was mortgaged. On death of the testator, the court denied the defendant's application for exoneration. The decision supports the position of the executor in the case at bar. But the Missouri court placed reliance upon the New York cases and quoted from Meyer v. Cahen, supra, which had been decided under a different statute. Furthermore, the Missouri court held that:
*673 The Missouri court appears to have believed that at common law a mortgage revoked a previous devise in the same manner as did a contract to sell. If this was not the basis of their decision, then they must have believed that the common-law rule that a mortgage does not revoke a previously executed will, as between the devisee and the testator-mortgagor, amounted at common law to a rule against exoneration as between the devisee and the personal estate. In either case, we are unable to concur in the reasoning of that court. Again the Missouri court said, "a somewhat similar statute seems to have been enacted in Oregon." Citing Howe v. Kern, 63 Or 487, 125 P 834, 128 P 818. The Oregon statute in question was not OCLA, § 18-303 (now ORS 114.150) which is involved here, but was the general statute, OCLA, § 19-805, amended by the Laws of 1947, ch 403, concerning the sale of real property to pay debts when the personal property has been exhausted. That statute exempted from the purview of the act property specially devised, and it still does. ORS 116.730.
The Oregon statute and the case cited from this jurisdiction had no bearing on the question considered by the Missouri court. The Missouri court could find only one Missouri dictum in support of its conclusion. Peck v. Fillingham, 199 Mo App 277, 202 SW 465. In the Hannibal Trust Company case, supra, the court quoted from 3 Woerner on American Law of Administration, 3d Ed, § 497, p 1733, as follows:
The learned author later added a footnote to his text, which reads as follows:
Gates v. Rice, 320 Mo 580, 8 SW2d 614, is cited by the executor in the pending case, but it was decided upon the authority of Hannibal Trust Co. v. Elzea, supra.
Savings & Trust Co. of St. Louis v. Beck, (Mo App), 73 SW2d 282, was decided upon the authority of the Missouri cases already considered.
In Cloninger's Estate, 8 Wash2d 348, 112 P2d 139, the testator mortgaged realty on 18 August 1930. The will was executed on 7 March 1932. The testator died in 1934. The court said:
The only question necessary for decision and decided was that the statute which was identical to our own had no application and that the common-law rule governed the case. It was held that the devisee was entitled to exoneration.
The opinion in Cloninger's Estate, supra, referred to an earlier Washington decision, In re McNulta's Estate, 168 Wash 397, 12 P2d 389, in the following language:
McNulta's Estate is, in our opinion, distinguishable from Cloninger's Estate, and from the case at bar. McNulta made a will on 16 June 1928 by which he devised to his wife in lieu of dower, any and all real estate within the state of Washington which he might own at the time of his death. On 18 June 1928 he entered into an executory contract for the purchase of realty in the state of Washington, which transaction was apparently contemplated when he made a will two days before. After his death, the devisee sought an order requiring the executor to pay out of the estate the balance due upon the executory contract. The court held that the devisee took only the interest in the land which the testator had at the time of his death, which, we would observe, was all of the interest which the testator ever had in the land. The situation was *676 unlike that which arises when a testator, owing the fee, mortgages it to secure a loan. We think the decision was not based upon the statute, which was inapplicable. The only reference to the statute was prefaced by the court as follows:
In this case also, the court relied upon Missouri decisions.
The executor cites the case of Doane v. Bigelow, 293 Mass 406, 200 NE 121, but that case was decided under a statute which provided as follows:
The case is not in point.
In re Earle's Estate, 331 Pa 23, 199 A 173, was decided under a statute which bears no resemblance to that of Oregon. The same is true of Swetland v. Swetland, 100 NJEq 196, 134 A 822, and Fidelity Union Trust Co. v. Laise, 142 NJEq 366, 60 A2d 250.
6. The fact that the devisee signed the note and mortgage for the accommodation of the testator did not bar her from the right of exoneration if she was otherwise entitled thereto. 4 Page on Wills, Lifetime Ed, § 1486, p 298; Saling v. Saling, 95 NJEq 611, 124 A 249; Farmers' State Bank v. Forsstrom, 89 Or 97, 173 P 935.
*677 7, 8. In view of our analysis of the cases cited by the defendant, and being fortified in our own opinion by the California decisions on which the plaintiff relies, we hold that the common-law right to exoneration has not been abrogated by the Oregon statute. This case is decided on principles of statutory construction in the light of the common law. But there are equitable considerations which support our conclusion. A will speaks as of the time of the testator's death, but the intent of the testator is manifested as of the time when the will is executed. 57 Am Jur 744, Wills, § 1145. When the testator herein executed his will, the property devised to his widow was unencumbered. She could accept the devise only by waiving her right of dower. From the reading of the will, we think it unlikely that the testator intended that she, having waived her right of dower, should find herself subject to the possible loss of the entire property unless she was able to put up $6,000 for the redemption thereof.
The order denying the petition of the plaintiff for exoneration is reversed and the cause is remanded for further proceedings conformable to this opinion. | 21efd13f723519fbb42aa64eb5e3b0c13000ff4a1f0f07475c1cc8e846390249 | 1954-03-24T00:00:00Z |
079112b1-833a-46f0-9733-232ef776fcc9 | In Re Estate of Peterson | 202 Or. 4, 271 P.2d 658 | null | oregon | Oregon Supreme Court | Affirmed June 17, 1954.
Petition for rehearing denied July 13, 1954.
James O. Goodwin, Oregon City, argued the cause for appellants. On the brief were Butler, Jack & Beckett, Oregon City.
Sidney L. Hayes, Portland, argued the cause for respondent. With him on the brief was John H. Kelley, Portland.
*5 Before LATOURETTE, Chief Justice, and LUSK, BRAND and TOOZE, Justices.
AFFIRMED.
PER CURIAM.
This is a will contest brought by Olaf Johnston and The Hebrew Evangelization Society, incorporated, a California corporation, to set aside the purported last will and testament of Charles J. Peterson, dated February 14, 1950, on the grounds of undue influence, and incompetency of the testator. The prayer of the petition is to declare null and void the will of February 14, 1950, and to admit in probate an earlier will dated February 10, 1949.
Olaf Johnston is the brother-in-law of the testator and, together with the Hebrew Evangelization Society, was a beneficiary under the earlier will.
1. The record discloses that after the execution of the February 10, 1949, will, defendant executed four additional wills, including the one in contest and that in the will of December 14, 1949, the one immediately preceding the will under contest, no mention was made of either Olaf Johnston or the Hebrew Evangelization Society, contestants herein. ORS 115.180. See In re Carlson's Estate, 153 Or 327, 56 P2d 347. Furthermore, the record discloses that the February 10 will was last seen in the possession of the testator and was not thereafter found. It therefore must be presumed to have been revoked by the testator.
2. For the above reasons petitioners have no standing in court to contest the will in question as under the state of the record they would have no financial interest in the estate.
Affirmed. | e87b05c3265772cfe9dec39d7878eb9020f427a397ca4f8608bf7ed50d193251 | 1954-06-17T00:00:00Z |
ee2ebab5-02a0-427e-8168-8fa48c63c08f | Casteel v. KING | 201 Or. 234, 269 P.2d 529 | null | oregon | Oregon Supreme Court | Affirmed April 21, 1954.
Richard Bryson, of Eugene, argued the cause for appellant. On the brief were Bryson & Bryson, of Eugene.
Daniel R. Dimick, of Roseburg, argued the cause for respondents. On the brief were Winston & Dimick and Robert M. Stults, of Roseburg.
Before LATOURETTE, Chief Justice, and WARNER, ROSSMAN and PERRY, Justices.
AFFIRMED.
PER CURIAM.
*235 Plaintiff seeks specific performance, as undisclosed principal, of a land purchase contract wherein defendant King agreed to sell his property to defendant Coleman.
It appears that plaintiff brought King and Coleman together in connection with the sale. Plaintiff and King had had some difficulty over previous business transactions, and on account thereof King inquired of both plaintiff and Coleman whether plaintiff had any interest in the sale. Both assured him that such was not the case, whereupon the deal was made, Coleman depositing $500 as down payment, which had been secretly furnished by plaintiff. Later on, Coleman, being conscience-stricken, notified defendant King that he had "played a dirty trick" on him, had "lied" to him, and "was afraid" King "would sue him and that he wanted out of the deal." Thereupon, King and Coleman canceled the contract.
1. It is well settled that the assumption of equitable jurisdiction in a given case is dependent upon an exercise of discretion in accordance with the dictates of judicial conscience. In the exercise of this discretion, courts are guided by well known maxims of equity, a cardinal one of which is that one who comes into equity must come with clean hands. Referring to such maxim, we quoted from 2 Pomeroy's Equity Jurisprudence, 5 ed, § 397, pp 91-92, in Dickerson v. Murfield, 173 Or 662, 670, 147 P2d 194, as follows:
*236 2. Plaintiff asks the court to enforce a contract in his behalf which had its inception in his own wrong-doing. The trial court refused equitable relief, in which we concur. Siess v. Anderson, 159 Mo App 656, 139 SW 1178; 5 Williston, Contracts, rev ed, § 1490, pp 4159, 4160; 2 Restatement, Law of Agency, § 304, p 680.
Affirmed. | 20fcb852535cea441ceba2a61e6d8734d53cc3e3f3c548c91bfe0b979221d473 | 1954-04-21T00:00:00Z |
40b6c13e-5b67-4d10-8e0d-c677e59f46af | Gubser v. Town | 202 Or. 55, 273 P.2d 430 | null | oregon | Oregon Supreme Court | Affirmed August 5, 1954.
*56 J. Ray Rhoten argued the cause for appellants. On the brief were Rhoten, Rhoten & Speerstra, of Salem.
Francis E. Marsh and Willard L. Cushing, of McMinnville, argued the cause for respondents. With them on the brief were Marsh, Marsh & Dashney, of McMinnville.
Before WARNER, Acting Chief Justice, and ROSSMAN, TOOZE and PERRY, Justices.
AFFIRMED.
ROSSMAN, J.
This is an appeal by David C. Town, George Hill, H.W. Black and H.E. Harris, four of the six defendants, from a decree of the circuit court which adjudged that the plaintiffs, husband and wife, are the owners of a tract of land which the decree describes, and which enjoined the defendants from entering upon or trespassing over the tract. In addition to awarding the plaintiffs the relief just mentioned, the challenged decree granted the plaintiffs judgment against the defendants in the sum of one dollar as damages for past trespasses. The tract of land which is described in the decree is approximately 42 acres in extent and is situated in Yamhill county.
*57 The appellants submit the following assignment of error:
The land with which this suit is concerned is located in the northerly part of Grand Island. The latter lies in the Willamette river. The island is bounded upon the east and south by the Willamette river. Lambert slough, an arm of the river, affords the island its other boundaries.
The brief of the appellants contains a map of the tract which is the subject matter of this suit and of the area immediately adjacent to it. Although the map was not drawn with the technical skill of an engineer, it affords a useful impression of the area with which the suit is concerned. A copy of the map appears on page 1247.
By looking at the map it will be observed that it contains a representation of the present course of the Willamette river and that to the left of that representation is an indication of where the river flowed in the year 1852. The land east of Lots 2 and 13 and lying between the present channel and east of the west bank of the old channel is the area in dispute. The following map identifies the area with the designation, Lot 1. Since the middle of the main channel of the Willamette river is the dividing line between Marion and Yamhill counties (§ 85-135, OCLA: ORS 201.240), the area which is known as Lot 1 lay in Marion county when the river occupied its old, or 1852, *58 channel. When the river cut and then flowed through its present channel, the land in question became a part of Yamhill county.
The map designates four areas with the symbols, Lot 9, Lot 13, Lot 3 and Lot 2. Those areas constituted the John Largent Donation Land Claim. The patent designated them with the symbols which we just employed. The respondents are now the owners of those four lots as the appellants concede. The westerly line of Lots 9 and 3 is the easterly line of Lambert slough.
*59 The respondents claim that they are the owners of Lot 1 by (1) accretion to the John Largent Donation Land Claim; (2) adverse possession; (3) a decree which the circuit court entered in a suit instituted by the respondents to quiet title to Lot 1 and in which the appellant Town was a party defendant; (4) a deed from one Opal Mary Mahoney, to whom we will later refer; and (5) a deed from the defendant Roy Stoutenburg which we will mention later. The appellants rest their claim to possession upon two purported leases, and urge that the respondents "can only prevail upon the strength of their own title and not upon the weakness of any title of the appellants or defendants." The appellant Town claims that he obtained a lease from Opal Mary Mahoney authorizing him to hunt upon the property in question. The document, if any, which evidences the purported lease was not produced during the trial and the record contains no information about its terms. The other alleged lease came from the State Land Board in 1950. It names as lessee the defendant-appellant David C. Town. It describes the leased premises in this way:
It mentions no county. Its term is five years.
By returning to the map it will be observed that upon Lot 7 there appears the name Stoutenburg. The defendants Roy Stoutenburg and Raymond Palmer own the land known as Lot 7. They were made defendants for the reason that they assisted the appellants to erect the duck blind which is indicated upon the map. They are not appellants.
*60 Opal Mary Mahoney, whom we have mentioned, together with her husband, owned Lot 1 when the river flowed through the channel which the map identifies as the 1852 channel.
We have mentioned the fact that the respondents own Lots 2, 3, 9 and 13 and that those parcels were part of the John Largent Donation Land Claim. That land claim, as the appellants admit, was acquired by John Largent in 1866 when the Federal Government issued a patent to him. The original government survey of the area with which we are concerned was made in 1852 and it showed that the east boundary of Lots 2 and 13 was the meander lines of the Willamette river. Accordingly, it appears that when the land was first surveyed it was riparian land. Jefferis v. East Omaha Land Co., 134 US 178, 33 L ed 872, warrants a holding that accretions to the land between the date of the original survey and the date of the patent passed to the patentee even though the description was by lot number.
We now quote from the appellants' brief:
and such lease is still in force and effect.
Much time was consumed during the trial with the presentation of evidence showing whether or not Lot 1 as now constituted, including the old river bed, is dry land and whether or not through the process of accretion that land has become a part of Lots 13 and 2; that is, of the property which the appellants admit the respondents own. The parties agree that the Willamette river as it flows through Grand Island is a navigable stream and that the rights of riparian owners extend to its low water mark.
The evidence upon the issue of accretion went back to the conditions as they existed in 1852. At that early *63 day the Willamette river flowed in the channel which is indicated upon the above map. Some of the witnesses recalled the steamboats which plied in that channel. They mentioned boat landings and grain warehouses which were in use in the days of river transportation. Ultimately a change in the course of the channel began to manifest itself. In 1891 flood conditions prevailed and all of Grand Island was submerged. When the water resumed its normal level it was seen that the river had begun to cut a new channel in the area with which this suit is concerned. Since the evidence upon that phase of the case came from men whose years are advanced and whose recollections had to recede a half century, it is imperfect in parts. Adding to the difficulties is the fact that the witnesses who described the shift in the river's channel and the subsequent deposit of alluvion, in using maps, pointed to "here" and "there", but, with a single exception, failed to make any mark upon the maps whereby we can locate the places to which they referred. This part of the record abounds in the reporter's notations of "indicating." The situation parallels McAdam v. Royce, 202 Or 245, 272 P2d 986, 274 P2d 564. The evidence, however, shows clearly that the river did not suddenly abandon its old course and cut a new one. About ten years passed before the river settled into the passage which it now employs. In the interim it cut a third passageway. That occurred in 1895 or 1896, but two or three years later it left that one. For sometime the river flowed through the old channel and the present one. During a part of the time that the river was making its transition from the 1852 channel to the present one, the area which we have identified as Lot 1 disappeared from sight. It was submerged by the water of the river. Before long a gravel bar emerged which could be seen *64 when the water was at low stage. It is impossible to determine from the record the place where the gravel bar came into view, for the witnesses, in testifying upon the subject, spoke of "here" and "there". After the gravel bar appeared, willows began to grow upon its surface.
It is clear that the gravel bar mentioned in the last paragraph is now a part of Lot 1, although soil and vegetation cover its gravel. The small bar which managed to find its way to the surface a half century ago has become integrated with the area to the west. Even the old channel of the river has become absorbed in the surrounding tracts and scarcely a trace of it remains. The area, which a few years after 1891 was submerged, now stands above the level of the Willamette from about May 1 to the latter part of September. Some years it is dry for even a longer period. Large trees now grow upon Lot 1 and at the time of the trial 23 head of cattle were finding good pasturage upon it. For many years sheep, cattle and horses have grazed upon it. An embankment, irregular in height, runs parallel to the area's easterly side. The evidence does not disclose the origin of the embankment. From its top one walks about 100 feet or so to the water's edge.
With the coming of the freshets in the fall, the livestock which grazed upon Lot 1 in the summer is removed. Presently water backs upon the lot from a depression in the north which is perhaps the vestige of an old channel. When the water in the river becomes particularly high, it overflows the embankment which we have mentioned. Water is seemingly no stranger to Grand Island, and all of the latter at times has been flooded. The duck blind which the defendants constructed *65 is several hundred feet from the river and in the summertime is surrounded by dry land.
Witnesses spent much time in describing the manner in which alluvial deposits have settled upon Lot 1 until it is now dry land during many months of the year. They spoke of the deposit of sediment which the freshets annually bring to the area. One of them thought that Lot 1's level is raised about a half inch each year. The line fence between Lots 2 and 7 which was built some years ago is now underground for part of its distance. A dredger which deepened the river in order to adapt it better for navigation brought the level of the island even further above that of the stream. A wing dam which the United States Army Engineers built in the river adjacent or near to Lot 1 has caused the sediment to settle more readily in that vicinity.
The appellants claim that it was the gravel bar, and not Lots 2 and 13, which accreted until it finally embraced them. The respondents contend that sediment was constantly deposited upon the water line of Lots 2 and 13 and that it was those areas which accreted.
The evidence would afford scant support for a surmise that the gravel bar, which appeared above the surface after the river had settled in its present channel, accreted materially. From the record, the bar vanishes as effectively from view as it emerged from the depths of the channel about 1900. It is impossible to ascertain what became of it. It is true that it developed a growth of willows and that a wing dam was built upon or near to it, but after those facts had been mentioned the gravel bar passed from the witness stand's ken. Upon the other hand, the record indicates with clarity that the river gradually, but constantly, made deposits upon the water's edge of Lots 2 and 13. *66 No less a person than the defendant Stoutenburg swore to that effect. He traced the deposits of alluvion which he said occurred first upon Lot 7 and then extended northerly over Lots 2 and 13. He showed how, over the years, the dry land which is now Lot 1 succeeded to the water which previously flowed there.
The evidence renders it clear that the Willamette, for many months of the year, carries quantities of silt and other material. When the water with its contents of alluvion backs up on Lot 1 the sediment is deposited there. One witness spoke as follows:
Seemingly, after the river settled into its present channel, its old passageway gradually became filled with alluvial deposits. As willows, ash and cottonwoods grew where water at one time had flowed, the deposit of the alluvion was quickened.
For further analysis of the evidence, we adopt the memorandum opinion of the able trial judge. He had the benefit which came, not only from seeing and hearing the witnesses, but also of observing them while they used the maps and pointed to "here" and "there". Further, he twice visited Lot 1. His first visit was made in November of 1951 when he ruled upon the motion for a dissolution of a temporary restraining order which he had previously issued. His second visit *67 was made in June, 1952, before he passed upon the merits of the case. The memorandum opinion, by the appellation "plaintiffs", refers to the same two persons whom we have spoken of as the respondents. By the term "defendants" it means, not only the four appellants, but also Stoutenburg and Palmer who did not appeal. Before quoting the part of the memorandum opinion which is concerned directly with the issue of accretion, we will resort to the following preliminary paragraphs and then pass directly into the passages which dispose of the issue of accretion:
The appellants' brief says:
1-4. One of the valuable rights which a riparian owner possesses is the right to all additions to his land which are effected by accretion. Accretion must begin upon the land of the party who claims the newly made land, and not upon some other place from which it may eventually extend until it reaches the claimant's. The deposits of alluvion which yield the accretion must be gradual and imperceptible as distinguished from the rapid and perceptible shift which is known as avulsion: State v. Imlah, 135 Or 66, 294 P 1046; Kingsley v. Jacobs, 174 Or 514, 149 P2d 950; Fowler v. Wood, 73 *73 Kan 511, 85 P 763, 6 LRS(NS) 162, 117 Am St Rep 534; Hohl v. Iowa Central Railway Co., 163 Ia 66, 143 NW 850; Clark on Surveying and Boundaries, 2d ed, §§ 246 and 300; Farnham, Waters and Water Rights, §§ 845 and 845a; and 56 Am Jur, Waters, §§ 483, 484 and 489. According to Wyckoff v. Mayfield, 130 Or 687, 280 P 340, the law presumes, in the absence of evidence to the contrary, that changes to riparian land occurs "by accretion and not by a sudden and violent force."
It is clear that beginning about 1891 the river changed its course through the area with which we are concerned from the one which it had pursued about 1852. In the course of the change, Lot 1, as it existed about a century ago, disappeared and eventually a new body of land, also known as Lot 1, developed. The change did not occur suddenly, and the deposit of alluvion which created new Lot 1 was gradual and imperceptible.
5. We are satisfied that the trial judge correctly discerned and applied the principles of law which govern accretion. We adopt his findings and conclusions upon that issue as our own. We believe that accretion occurred to Lots 2 and 13 and that through that process there developed the area which is known as present Lot 1.
6. It is further our belief that the trial judge did not err when he ruled that the descriptions which are employed in the deeds executed by the Stoutenburgs in 1934 and by Mrs. Mahoney in 1945, as well as in the decree entered by the Circuit Court for Yamhill County in 1945, were sufficient. Mr. S. Simms, a licensed surveyor and engineer, was produced as a witness by the appellants. Appellants' counsel handed Mr. Simms a *74 copy of Mrs. Mahoney's deed and examined him extensively concerning the sufficiency of the description in that instrument. His attention was particularly directed to the part of the description which begins as follows: "Beginning at the Southwest corner of Lot 2" and then runs on to the end. The description is reproduced in its entirety in a preceding paragraph of this opinion. As the examination proceeded, Mr. Simms testified as follows upon direct examination:
Upon cross-examination he gave this testimony:
In view of Mr. Simms' testimony, the description sufficed: § 70-111, subds 1 and 2, OCLA, ORS 93.310; and Bogard v. Barhan, 52 Or 121, 96 P 673.
7. As we have indicated, the respondents amplified their claim to title to Lot 1 by presenting evidence that they and their grantors have had open, notorious, continuous, hostile possession of the questioned tract since 1919. The parents of respondent Ersel L. Gubser received a deed to the land in 1919 and in 1933 conveyed to him. The evidence discloses that when the parents acquired the John Largent Donation Land Claim they took possession of the entire area, including present Lot 1. The elder Gubser testified that every year when he held this tract he pastured livestock upon it and made other uses of it. Respondent Ersel Gubser, as is shown in preceding paragraphs, has used Lot 1 for pasturage purposes virtually every year since 1933. He has also hunted upon it. We have seen that he secured additional deeds to the property whenever claimants have asserted themselves and that he successfully maintained a suit to quiet title to the tract. In addition, he had the appellant, Town, arrested for trespass when he observed him upon Lot 1. The respondents have posted No Trespass notices upon the lot. More than one of the appellants saw the notices and mentioned them while giving their testimony. Several times when respondent Ersel Gubser discovered appellant Town upon Lot 1 he protested and ordered him to leave the property. Some angry words were exchanged at those times. According to the testimony of Ersel Gubser, the respondents have paid the taxes upon the land in question. *76 We have mentioned the fence which was built many years ago and which ran along the south line of Lot 1. It will be recalled that the annual deposits of alluvion have buried parts of the fence. The respondents have replaced the fence with a new one. Without relating further details, we add that the nature of the respondents' possession is not questioned by the appellants. The latter's only attack upon that facet of the respondents' claim to title consists of a contention that, since the complaint did not aver title by adverse possession, no effect can be given to the evidence just recounted. The respondents, however, averred ownership. That allegation sufficed. Smith v. Algona Lumber Co., 73 Or 1, 136 P 7, 143 P 921.
We have given careful attention to all of the contentions advanced by the appellants in support of their assignment of error. We do not believe that the assignment of error discloses any infirmity in the circuit court's decree. The latter, according to our belief, is free from error and is correct.
The decree of the circuit court is affirmed. | 07dec71328d16e94582a6dea043b16e6fee20b61cbab00d4581b14a642154a78 | 1954-08-05T00:00:00Z |
2a430ad1-bdd6-4857-90d2-d1a7bc4577d9 | Ashford v. Ashford | 201 Or. 206, 268 P.2d 382 | null | oregon | Oregon Supreme Court | Affirmed March 24, 1954.
Petition for rehearing denied April 21, 1954.
*207 Joseph H. Page, of Portland, for motion.
Henderson & Dickinson, of Portland, for appellant.
*208 Edward A. Boyrie, of Portland, for intervenor-respondent.
MOTION DENIED.
WARNER, J.
This is on the motion of Edna Mae Ashford, defendant-respondent, for an allowance of attorney's fees for services in preparing her brief and appearance of her counsel in this court in a pending appeal in a suit for divorce wherein the defendant wife prevailed in the lower court.
1. The application of the respondent is settled by the authority of Edwards v. Edwards, 191 Or 275, 281 et seq. 227 P2d 975, where we held that this court is without authority to make such an allowance. We there said, at page 284:
In terms of our own inclination, we reluctantly deny the relief which the respondent seeks and do so solely for the reasons given in Edwards v. Edwards, supra. Her supporting affidavit, if true, delineates a picture of financial hardship and impoverishment which well might deny to the respondent a fair opportunity to adequately present and defend her cause in this court, when the appeal instigated by her appellant *209 husband is heard here on its merits. The apparent injustice flowing from a want of sufficient power here to make an appropriate answer to respondent's request is accentuated by a record which reveals that the appellant husband is an able-bodied man with a substantial income and by the further fact that a parcel of real property involved in the suit threatens to be lost through a pending mortgage foreclosure; but the course followed concerning this and other meritorious motions of like nature must necessarily continue until the legislative assembly evolves some method which will satisfactorily make provision for the alleviation of conditions reflected by the circumstances here present.
Motion denied.
Wilber Henderson argued the cause for appellant. On the brief were Henderson & Dickinson, of Portland.
Joseph H. Page, of Portland, argued the cause and filed a brief for respondent.
Before LATOURETTE, Chief Justice, and LUSK, TOOZE and PERRY, Justices.
AFFIRMED.
TOOZE, J.
This is an appeal by the plaintiff Francis N. Ashford from a decree of divorce entered against him in favor of the defendant Edna Mae Ashford.
Plaintiff and defendant were married at Portland, Oregon, on November 23, 1939. On May 8, 1946, plaintiff filed in the circuit court for Multnomah county a *210 complaint in which he charged defendant with cruel and inhuman treatment and prayed for a decree of divorce. On August 11, 1946, plaintiff filed an amended complaint, and on May 8, 1947, a second amended complaint, in which he charged that his marriage to defendant was void because, as he alleged, at the time of such marriage "the defendant had another husband, to-wit: one L.A. Mott, living and to whom she was legally married, and that the defendant's marriage with said Mott was then * * * in force and not dissolved or annulled by decree of divorce or otherwise; * * *", and he prayed for a decree declaring his marriage to defendant void.
By her amended answer, defendant admitted her marriage to L.A. Mott on August 7, 1929, but affirmatively alleged that such marriage had been dissolved by a decree of divorce entered in her favor and against said L.A. Mott by the circuit court for Multnomah county, Oregon, on January 11, 1939, and further, that said decree of divorce had never been vacated, modified, or set aside.
There is but one issue presented on this appeal, and that relates solely to the divorce decree entered in favor of defendant against her former husband, L.A. Mott.
In his brief filed in this court, plaintiff states the issue as follows:
The attack upon the divorce decree in this suit is a collateral, and not a direct, attack, and the decisive *211 question in this case is whether, under the record, such decree is subject to a successful collateral attack.
Upon the trial of this cause, a duly certified copy of the entire record in the divorce suit of E.M. Mott (the defendant in the instant suit), as plaintiff, against L.A. Mott, as defendant, was offered and admitted as evidence.
The only defect in those proceedings that is relied upon by plaintiff in his attack upon the validity of the divorce decree is the alleged insufficiency of the affidavit filed in support of an order for publication of summons.
The complaint filed in the divorce suit states a good cause of suit; summons was duly issued and placed in the hands of the sheriff of Multnomah county for personal service upon the defendant Mott (with duly certified copy of the complaint); the sheriff returned said summons with his certificate endorsed thereon that "after due and diligent search and inquiry, I hereby return that I have been unable to find the within named defendant, L.A. Mott within Multnomah County, Oregon"; upon the filing thereafter of an affidavit for publication of summons, the court made and entered of record its order for publication of summons and designated in said order the newspaper of general circulation in which such summons should be published, and the time for such publication, all as required by law, and summons was so published; upon the expiration of the time for defendant to answer the complaint, no answer having been filed, nor other appearance made by defendant, the default of defendant was duly entered of record, testimony was taken before the court, and, based thereon, a decree of divorce in favor of the plaintiff was duly entered of record.
*212 Omitting formal parts, the affidavit for publication of summons reads as follows:
Based upon said affidavit and the return of the Multnomah county sheriff, the court entered of record the following Order for Publication of Summons (omitting formal parts):
The proceedings for the publication of summons were based upon § 1-506, Oregon Code 1930 (§ 1-606, OCLA, as amended by ch 63, Oregon Laws 1947; ORS 15.120). This statute was made applicable to divorce suits by § 6-111, Oregon Code 1930 (§ 9-112, OCLA; ORS 15.130). In part, the statute provides:
2. It is the well-established law of this state that in an affidavit for publication of summons every fact must be shown that is necessary under the statute to give the right to an order for service by publication. Probative facts must be stated, it not being sufficient merely to use the words of the statute. It is not sufficient to state generally that after due diligence the defendant *215 cannot be found within the state, or that the plaintiff has a good cause of action against him, or that he is a necessary party; but the acts constituting due diligence or the facts showing that he is a necessary party should be stated. Plaintiff contends on this appeal that the affidavit under consideration here does not meet these requirements, and, therefore, the court acquired no jurisdiction to enter an order for publication of summons. He argues that this defect in the affidavit renders the service of summons, and the decree based thereon, absolutely void. In support of his contention, plaintiff cites and relies upon three prior decisions of this court: Dixie Meadows Co. v. Kight, 150 Or 395, 45 P2d 909; Bagley v. Bloch, 83 Or 607, 163 P 425; Felts v. Boyer, 73 Or 83, 144 P 420.
Each of those cases involved a direct attack upon the decree entered in the suit in which the defective affidavit was filed. The court was not faced with a collateral attack, as we are in the instant litigation. This poses an entirely different problem.
3, 4. At the outset, it must be conceded that the court which rendered the decree of divorce was then exercising a special power conferred upon it by statute, and not according to the course of the common law. We have frequently said that when exercising a special power conferred upon it by statute, and not according to the course of the common law, a circuit court is a court of special and inferior jurisdiction, and its proceedings in such cases are subject to all the incidents applicable to a court of that type. Zipper v. Zipper, 192 Or 568, 574, 235 P2d 866; Quinn v. Hanks, 192 Or 254, 233 P2d 767; Voltz et ux. v. Abelsen, 190 Or 319, 224 P2d 213, 225 P2d 768; Garner v. Garner, 182 Or 549, 189 P2d 397.
*216 However, it must be kept in mind that under the statutes of this state this divorce court of special and inferior jurisdiction is vested with exclusive jurisdiction over the subject of divorce. In 49 CJS 841, Judgments, § 425(3) b, the following rules are stated:
In 49 CJS 830, Judgments, § 422 c, in speaking of substituted or constructive service of process, it is said:
In support of the emphasized portion of the above rules, the author cites George v. Nowlan, 38 Or 537, 64 P 1.
In George v. Nowlan, supra, one of the grounds for attack was "that the affidavit for publication and the published summons were insufficient." Chief Justice ROBERT S. BEAN wrote the opinion of the court. After setting forth the substance of the affidavit for publication of summons, Justice BEAN, at page 542 of 38 Or, said:
In Moore Realty Co. v. Carr, 61 Or 34, 37, 120 P 742, a suit to quiet title, a collateral attack was made upon a decree entered in a mortgage foreclosure suit. The attack was based upon an alleged defective and insufficient affidavit for publication of summons. This court, after stating that the only question involved was the sufficiency of the service of summons on defendants, said:
After discussing and quoting from several authorities, the court continued:
We also commented upon the case of Ricketson v. Richardson, 26 Cal 149, cited by plaintiff in the instant *219 suit, and also quoted from by this court in Felts v. Boyer, supra, and pointed out that there a direct attack upon a judgment was involved. As to collateral attacks, the court in the Moore Realty Co. case cited and quoted with approval from the cases of Pennoyer v. Neff, 95 U.S. 721, 24 L ed 565, and Essig v. Lower, 120 Ind 239, 244, 21 NE 1092.
In the note to Clay v. Bilby, 1 Ann Cas 923, also quoted in the Moore Realty Co. case, it is stated:
In Pennoyer v. Neff, supra, a case in which there was a dismissal by the lower court for the reason that the affidavit for publication of summons was wholly insufficient to give the court jurisdiction by publication, the Supreme Court said:
5, 6. The judge in the divorce suit had jurisdiction to pass upon the sufficiency of the affidavit for publication of summons. If defective, he had the authority to refuse to enter an order for publication; he could have permitted an amendment or required the filing of another affidavit. As a condition for an order of publication, the statute requires that certain facts must be made to appear by affidavit "to the satisfaction of the court or judge". It follows, therefore, that, in the first instance, whether the affidavit filed is sufficient is a question that is necessarily addressed to, and must be decided by, such court or judge before an order for publication of summons is made. Jurisdiction to pass upon the sufficiency of the affidavit carries with it jurisdiction to decide erroneously as well as correctly. This is not a case in which no affidavit whatever was filed. The defect in the affidavit under consideration relates to its failure to state just what inquiries were made or what steps were actually taken, in the exercise of due diligence. But it is observed that it does state that defendant had no residence, place of abode, place of business, post-office address, or dwelling house in the state of Oregon, and it further refers to the "not found" return of the sheriff; it also shows that the court had jurisdiction of the subject matter, that defendant in that suit was a necessary party. In its order for publication of summons, the court referred to the affidavit and to the return of the sheriff, and affirmatively stated that it had been made to appear "to the satisfaction of the court" that personal service of summons could not be made or had upon defendant within the state of Oregon, and directed that summons be published. This is not a case where no notice at all was *221 given to the defendant, nor where the summons as published did not contain everything required by statute. It is conceded that under our decisions the affidavit was defective in failing to show what was done in the exercise of due diligence, but that defect does not render the decree void and vulnerable to collateral attack.
In Essig v. Lower, supra, the Indiana court said:
In Jackson v. State, 104 Ind 516, 517, 3 NE 863, the Indiana court discussed a large number of cases in which the issue now before this court was under consideration. It said:
In Moore Realty Co. v. Carr, supra, at page 41, the court further stated:
*223 In Bull v. Campbell, 225 Fed 923, 929, the court said:
Also see Butler v. McKey, 138 F2d 373; 42 Am Jur 80, Process, § 92; 1 Freeman 5th ed 715, Judgments, § 349.
In 1 Freeman, Judgments, supra, the following rule is stated:
7. The parties to this litigation lived and cohabited together as husband and wife for a period of seven years. Plaintiff knew of defendant's prior marriage and divorce at the time he married her. Every presumption is in favor of a valid marriage. Subdivision 30 of § 2-407, OCLA (ORS 41.360) provides a disputable presumption that "a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage". Public policy demands that the marriage relation be protected, and every reasonable doubt should be resolved in favor of a valid marriage. Unless absolutely void, the decree of divorce *224 in the former suit should be upheld. We are of the opinion that the defect in the affidavit for publication of summons rendered the decree of divorce at most merely voidable, and not void, and that, as against a collateral attack, it must be held to be a valid decree.
The decree is affirmed. | e880cd543fe58d87c25b98b61cd7447d69e9ca63bb077fe58690219083901f9f | 1954-03-24T00:00:00Z |
b4695f49-143d-4916-a9da-08b7e1e12269 | Shaffner v. City of Salem | 201 Or. 45, 268 P.2d 599 | null | oregon | Oregon Supreme Court | Reversed March 31, 1954.
*46 Harry J. DeFrancq, of Portland, argued the cause for appellants. With him on the briefs were Koerner, Young, McColloch and Dezendorf, of Portland.
Fred A. Williams, of Salem, argued the cause and filed a brief for respondents.
Before LATOURETTE, Chief Justice, and WARNER, LUSK, BRAND, TOOZE and PERRY, Justices.
REVERSED.
WARNER, J.
This is an appeal from a proceeding brought for a declaratory judgment to test the validity of ordinance No. 4287 of the city of Salem and to restrain the defendants *47 Richfield Oil Corporation and Henry Camp from constructing a service station upon the premises described in that ordinance on a lot situated at the northeast corner of the intersection of Shipping street with North Capitol street, a part of highway 99E in said city (hereinafter referred to as Lot 5). The effect of ordinance No. 4287 (hereinafter called the zone ordinance) was to change the previously prevailing zone classification from Class II Residential District to Class III-X Restricted Business District. The "restriction" characterizing the latter classification was a limitation to use as an automobile service station with a set-back requirement. Plaintiffs were owners of various parcels of real property in the vicinity of that described in the offending ordinance. From a decree favorable to plaintiffs, the defendants named appeal.
Ordinance No. 3628 (hereinafter called the zoning code) was originally adopted by the city in 1944, pursuant to the authority granted by title 95, ch 24, OCLA (§§ 95-2401 to 95-2408 [ORS 227.210 to 227.300]) and in its overall character classified all property in the city as being within one of the zones therein designated. It also provided for the manner of changing from time to time the zone classification of a given parcel or group of parcels.
Following the procedures directed by the zone code, Nelson & Nelson, a local firm of real estate brokers, in August 1951 filed with the secretary of the Salem Planning and Zoning Commission (hereinafter called the Commission) a petition to change the zone classification of the subject property from Class II Residential District to Class III Business District. The petition was signed by the owners of 67 per cent of *48 the property in the "affected area", which is defined by § 1(5) of the zoning code as follows:
In due course the Commission in executive session determined to reject the petition unless it was amended to request a change from Class III to Class III-X and to grant the applicant the right to so amend. This was accomplished by Nelson & Nelson through the filing with that body of a letter in the nature of an amendment, together with the data required by § 23 of the zoning code. Class III zoning is more generous than Class III-X as to the kinds of businesses permitted within its boundaries. It countenances not only automobile service stations but many other kinds of business and does not require the set backs mandated by Class III-X.
On September 18, 1951, after due notice a hearing was had before the Commission. There being a want of sufficient remonstrances to circumvent action, the Commission made a report to the city council favorable to the petition as amended. The city council then gave due notice of a hearing before it, set for October 8, 1951. At that time and in the absence of written remonstrances by the owners of 50 per cent or more of the affected area, the council passed and adopted the zone ordinance, placing the subject property in Class III-X.
The appeal attacks the findings of the court in two respects: (1) the holding that there was a want of a valid petition for a change in the zone classification *49 from Class II to Class III-X and (2) that the zoning ordinance was not in the furtherance of the public interest and welfare.
The challenge to the validity of the instant zone ordinance is predicated upon two propositions. The first is that there was no amended petition before the Commission seeking a change from Zone II to Zone III-X. Although not clearly stated, this position seems to rest upon a repudiation of the Nelson letter as an efficient amendment to the first filed petition requesting a change from Zone II to Zone III and apparently for the reason that the letter of amendment was not subscribed to by parties who had signed the original petition. The second proposition is that the city council gave an insufficient notice of its impending action on the subject ordinance.
We find it unnecessary to pass upon the question of the efficacy of the amended petition before the Commission for the reason that the subsequent action of the city council, after receiving the Commission's recommendations in the premises, step-by-step conformed to the requirements of the zone code with respect to zone changes initiated by the council on its own motion.
The zoning code provides two methods whereby zone classifications may be made. One is by the council on its own initiative after notice and a public hearing. The other is by a petition signed by the owners of 50 per cent or more of the property in the affected area in which a change is to be made, including not less than 50 per cent of the area to be changed. Such a petition is filed with the Commission. After due investigation, notice and hearing the Commission transmits its report and recommendations to the city council for such action as it deems appropriate (§ 23 of the *50 zoning code, as amended). It acts in the premises solely in an investigative and advisory capacity.
Except for the alleged irregularity of the amended petition, no other charge is made that all the procedures up to the filing of the Commission's report were not in accordance with the requirements of the zoning code.
Subsequently, the council proceeded in the matter as if the proposed zone change had originated with it, that is, after giving the required notices and holding a hearing, the zoning ordinance was adopted. Only one challenge is made to this phase of the record. The plaintiffs erroneously contend that the notice of hearing should have been published 20 days instead of 10. This contention rests upon the wording of the zoning code as originally drawn. Prior to the passage of ordinance No. 4287, it had been amended, reducing the time for publishing notices to ten days.
We find that from a procedural standpoint, the contested zone ordinance was regularly adopted.
The most important cause of this appeal is predicated upon the lower court's finding that the change of the zone classification to Class III-X is not connected with the public health, safety, morals or general welfare of the city of Salem.
1. The subject of municipal zoning is relatively new. It did not become a part of our own jurisprudence until 1919 (§§ 95-2401 to 95-2408, OCLA). Its novelty and its inherent nature dictate that it should not be encumbered with many rules too hard and too fixed whereby the illegality of zoning acts can be quickly determined and announced. To the contrary, the validity of a given zoning plan "must depend upon the circumstances of each case and the character of the regulation, *51 whether arbitrary or reasonable and whether really designed to accomplish a legitimate public purpose." C.B. & Q. Railway v. Drainage Comm'rs, 200 US 561, 592, 50 L ed 596, 26 S Ct 341. No doubt, the flexibility demanded in large part springs from the fact that zoning is not static. "* * * It changes with changed conditions and the complexities of a modern age. If the rule were otherwise, there could be no progress. * * *" Page et ux. v. City of Portland et al., 178 Or 632, 638, 165 P2d 280.
There are, however, some rules already laid down by this and other courts which compel notice and application here in our determination of the validity of the instant zoning ordinance.
2. In the adoption of zoning regulations, the legislative body, usually a city council, has a considerable latitude of discretion. The courts will not interfere unless the action was clearly unreasonable and arbitrary and had no substantial relation to the legitimate objects sought to be gained, i.e., the furtherance of public health, morals, safety or welfare, and will not review it if the question is fairly debatable. Holt et ux. v. City of Salem et al., 192 Or 200, 207, 234 P2d 564; Page et ux. v. City of Portland et al., supra.
In 8 McQuillin, Municipal Corporations 3d ed, 68, § 25.40, we find:
3. A presumption of validity and reasonableness attends zoning ordinances and amendments thereto. In 8 McQuillin, supra, p. 559, § 25.295, it is further said:
Also see Holt et ux. v. City of Salem et al., supra, at p. 207; Page et ux. v. City of Portland et al., supra, at p. 639.
*53 4. The burden of proof rests upon those challenging the validity of the ordinance and as stated in 8 McQuillin, supra, p. 562, § 25.296:
The proof to be sufficient must do more than make the invalidity of the ordinance doubtful. 8 McQuillin, supra, p. 558, § 25.294.
5. The plaintiffs contend that the ordinance under review exemplifies "spot zoning" and that as such it is illegal. It is true that as a general rule, so-called "spot zoning" is invalid. Page et ux. v. City of Portland et al., supra, at p. 642. However, as we said in the Page case, "We do not wish to be understood as announcing a hard and fast rule that `spot zoning' is illegal. Obviously, the decision in each case depends upon its particular facts." We adhere to that statement.
Spot zoning in its least savory sense is not present here. It is true that the property which the instant *54 ordinance seeks to transfer from Zone II to Zone III-X is a single corner lot of one block in that zone, but the block in which it is situated is but one of ten blocks in the affected area. This area is more or less evenly divided by North Capitol street running in a northerly and southerly direction. It is one of the heavy-traffic streets of the city, with scattered and various businesses along the east and west sides of the street. Some of these business establishments are a direct result of changes in classification made since the adoption of Salem's zoning code.
We will first refer only to those business locations within the affected area, as defined for the purpose of qualifying petitioners or remonstrators under that code.
On the west side of Capitol street in the block south of the intersection of Capitol street and Shipping street, we find a substantial business building occupied by an insurance firm. This was authorized as a result of a petition filed within 18 months prior to the adoption of contested ordinance No. 4287 and effected a change from Zone II to Zone III-X. It is situated on a lot 80 feet south from the intersection upon which Lot 5 is located. Within two years prior to the passage of ordinance No. 4287 a parcel on the east side of Capitol street and at the intersection of that street with Hood street, one city block or 256 feet south of Shipping street, was taken from Zone II and placed in Zone III-X. The building subsequently erected thereon is now occupied by an ice cream store.
We now point to some other properties on Capitol street not in the affected area but sufficiently contiguous thereto to give an express business character to the areas along that street.
*55 Three blocks south of Lot 5 a lot abutting upon the east side of Capitol street at its intersection with Market street was given a Zone III-X classification about three years before the adoption of ordinance No. 4287. Thereafter and now, a substantial service station is operated on the property. Also at the northeast corner of the same intersection a grocery store and meat market are operated, pursuant to the same type of zone reclassification authorized by the instant ordinance and made long prior to its enactment.
Only a relatively short distance north of the northerly boundary of the affected area we find the southerly boundary of what is commonly called the Hollywood district a thriving commercial center with many different types of business enterprises serving the public and residential district of which plaintiffs' property is a part.
6. Thus it is seen that the action of the Salem city council in adopting the offending ordinance does not create a "commercial island" in a residential area in the sense condemned in the Page case, nor is its spot zoning character vulnerable to successful attack when, as here, it is but one of many previously created areas of like kind with like business qualities and limitations. Indeed, if we limit our examination to that part of Capitol street lying within the bounds of the affected area, we find that during recent years it inclines more and more to business use and investment and with more than a probability that the so-called "commercial islands" now on its route will eventually coalesce into one large commercial area. This is emphasized by the presence of the business enterprises found close to the north and the south boundaries of the affected area on either side of that street.
*56 This conclusion is pointed up by Mrs. Mabel Woelk, a witness for the plaintiffs, when she testified that "No one wants to buy a residence on the fringe of a business zone", and by the fact that no permits for the construction of residences on this segment of Capitol street have been issued during the past eight years. Such is also the tenor of the uncontradicted testimony of Theodore Nelson, an expert in property sales and utilization, who stated that there is no reasonable expectation of selling vacant lots on that part of Capitol street for residences or apartment courts.
We now turn to the case made by plaintiffs. Eight witnesses were called, all of them owners of property within the affected area. Two of the eight, that is, the plaintiff Mrs. Shaffner and her husband, were the owners of the same parcel, a lot immediately north of Lot 5, and the only witnesses having property abutting on Capitol street. The Shaffners rent their property and live elsewhere in Salem. The other six witnesses were owners of property in the affected area not abutting on Capitol street. Their testimony in the main followed the same general pattern of objections to the presence of a service station on Lot 5. Four, all living in Block 2 of which Lot 5 is a part, viewed it as a hazard to their children who commonly use as a playground the alleyway running east and west through the block. Five asserted that it would increase the one-way traffic on Capitol street. One witness added that it would add to the noise in the area. Only five claimed an unfavorable effect on the value of their property, variously expressing themselves. Mr. and Mrs. Shaffner limited themselves to impairment of rental values; Mr. Lindstrom said it would "Probably [cause] a decrease in value" and that "It will devaluate the property, without question"; Mrs. *57 Magnuson, another plaintiff, ventured that "the value of the property will naturally deteriorate, especially if certain types of business go in"; and Mrs. Woelk, in answer to whether or not her property would be damaged, responded, "Definitely." Mr. Weller, whose home is on Shipping street midway between Summer and Capitol, claimed he did not sign the petition because he "figured it would decrease the value of our property as residential property".
In these respective statements we have the essence of all the testimony regarding the alleged impact of the change in zone upon the particular properties referred to by the several witnesses for plaintiffs and whose generalized statements of value referred therein only to their particular holding. No expert testimony was adduced as to the extent, if any, that the values of their properties would deteriorate by reason of the zone change effected by ordinance No. 4287. No witness attempted to demonstrate in what way the general welfare of the city would be impaired by the council's action, or, indeed, the welfare of the area affected by the adoption of the ordinance.
We note that all the witnesses represent only seven separate parcel ownerships out of 65 parcels in the entire affected area, or, in terms of footage, approximately 13.2 per cent of the whole. We also observe that the initial petition for the change in zone classification represented 67 per cent of the entire ownership in the affected area. While these mathematical factors are in no sense controlling, they tend to give support to the thesis that if ordinance No. 4287 was in fact detrimental to the general community welfare, a more militant and cogent showing would have been made, rather than the weak presentation relied upon by the plaintiffs.
*58 7. Taking plaintiffs' testimony as a whole, and each of the several phases of its presentation, i.e., the claim of hazard to a few children who employ the alley as a playground instead of the purposes of its dedicated use, the claim of increased noise, the claim of increased traffic on Capitol street, and the probable damage to a few parcels of residential property, we find that it is too vague, speculative and inconclusive to overcome the presumption which the law accords to the validity of a zoning ordinance.
The decree of the circuit court is reversed.
LATOURETTE, C.J., dissents. | b94b3ff6685c8b5528418819a942cc5f975b40332a57c137d72a48680f2f7133 | 1954-03-31T00:00:00Z |
7ad7871d-5e2e-4203-9daa-370c7bac693e | State Highway Com. v. Burk | 200 Or. 211, 265 P.2d 783 | null | oregon | Oregon Supreme Court | Modified and remanded January 13, 1954.
*218 George A. Rhoten, of Salem, argued the cause for appellants. With him on the brief were Rhoten, Rhoten & Speerstra, of Salem.
Ralph Wyckoff, Assistant Attorney General for Oregon, of Salem, argued the cause for the State Highway Commission, plaintiff-respondent. With him on the brief were George Neuner, former Attorney General for Oregon, C.W. Enfield, Assistant Attorney General and Chief Counsel for the Oregon State Highway Commission, Fred A. Miller, Assistant Attorney General for Oregon, and Robert L. May, Jr., Assistant Counsel for Oregon, all of Salem.
MODIFIED AND REMANDED.
BRAND, J.
This is a condemnation action brought by the State of Oregon by its Highway Commission against the owners and their lessees of land required for a non-access highway. The principal issues in the case are two. The first concerns the claim of the defendants that there should have been separate awards of damages to the owners of the land, on the one hand, and to the several lessees of portions of the same, on the *219 other. The second main issue is new to our jurisprudence. The question presented is whether the defendants were entitled to compensation for the taking of an alleged right or easement of access. The defendants claim that the court erred in ruling that they were not entitled to damages on account thereof. These and other minor issues were resolved against the contentions of the defendants. The case went to the jury, which returned a single verdict for $33,000 with interest, and a judgment was entered on the verdict condemning the property for a non-access highway. The defendants appeal.
The complaint, which was filed on 8 September 1950, alleges that a certain highway known as the Salem-Dallas Highway, being State Highway No. 30 and State Route No. 22, is a state highway and a part of the state and federal highway systems. The complaint alleges that the section of said highway in question had been previously constructed and maintained, but that traffic conditions had made it necessary to relocate it upon a new line. The complaint alleges that the defendants Burk, Pearl C. Couey and Modella May Rodgers, are the owners of the record title to certain real property which is described therein. We shall refer to this group of defendants as the "owners". It is alleged that the defendants Patzer, Galloway and Winkenwerder claim some title or interest in the property, the exact nature of which is unknown to the plaintiff. The complaint, as modified by the supplemental complaint, describes the tract of land which is required for right-of-way purposes and for proper relocation, construction, improvement, repair, maintenance and operation of said highway by the state. No part of the land condemned for the *220 new highway was within the boundaries of the old. The property described is a part of a larger tract owned by the defendants and amounts to approximately 8 1/2 acres in area. The complaint then alleges that the highway carries a large volume of traffic and that it is the judgment and opinion of the Commission that, in addition to the acquisition of fee simple title to the real property described in the supplemental complaint, "there be also condemned and extinguished such interest, if any there be, by which a right of access, ingress, egress, or regress, or any right in the nature of a right of access, ingress, egress, or regress, may accrue" to the property owned by the defendants but not taken. The prayer is for an assessment to be made by a jury as to the compensation to which the defendants should be entitled for the taking of the fee simple title to the real property described, and for the extinguishing of all rights of access and reservations or interests "if any there be". The answer of the owners, so far as material to this controversy, alleges that, should their property and rights be taken, there would be damage in the sum of $75,000, the alleged value of the said property and rights, plus the damage to the remaining property of the defendants not taken. It was alleged that the sum stated "is, of course, exclusive of sums, if any, to which defendants Patzer, Galloway and Winkenwerder may be entitled." The last-quoted portion of the answer of the owners was stricken upon motion of the plaintiff. Answers were filed by the defendants Patzer and Winkenwerder. The answer of Winkenwerder alleged in part:
He alleged that the value of his rights and property interests was $15,000, and he sought in addition $750 as a reasonable attorney fee. The allegations of the defendant Winkenwerder concerning the separate value of his leasehold interests were stricken by the court upon the motion of the plaintiff. A similar answer was filed by the defendant Patzer, setting up his unexpired 10-year lease, and alleging that pursuant thereto he had constructed a pumice block and concrete one-story building on said property and had increased the value of the premises thereby. He also claimed that his damages in the amount of $15,000 should be separately assessed, and he sought attorney fees in the sum of $750. The allegations concerning his alleged right to separate assessment of damages were stricken.
*222 After the filing on 3 January 1952 of the supplemental complaint, to which reference has been made, the defendant owners filed an answer. In it they eliminated the allegations concerning their alleged right to a separate assessment of their damages, and in lieu thereof alleged that the true value of the property and rights of all defendants, plus damage to the remaining property, was $85,000 with 6 per cent interest from September 8, 1950. They also sought attorney fees. The plaintiff replied, denying the alleged damages and denying that any sum should be allowed as attorney fees.
On 16 January 1952 the defendant Patzer filed an amended answer. The allegations were similar to those of his original answer except that he eliminated the allegations concerning his separate damage which had been stricken by the court. On 16 January 1952 the defendant Winkenwerder filed his amended answer, eliminating the matter which had been stricken by the court, but amplifying his previous allegations concerning the nature of his leasehold. He alleged that:
Defendant also alleged that the lease was in good standing and that the total value of all the property and rights of the defendants, plus damage to the remaining property and rights was the sum of $85,000 He also sought attorney fees. Replies were filed. The cause was dismissed against the defendants Galloway and judgment was entered upon the verdict of the jury which assessed the damages in a single lump sum, without any segregation as between the various defendants. The judgment recited that "on September 8, 1950, plaintiff, pursuant to the provisions of Section 100-116, O.C.L.A., took possession of, and proceeded to construct a public highway thereon, all of the real property sought to be condemned * * *." The court further found that the defendants were entitled to their costs and disbursements and a reasonable attorney fee to be fixed by the court. The judgment further recited that the plaintiff had elected to take the property and had tendered the amount *224 of the verdict plus 6 per cent interest from September 8, 1950, and it was adjudged that the real property and all rights of egress and ingress were condemned and appropriated to the State of Oregon.
On 3 April 1952 the defendant owners filed a motion for a supplemental hearing for the purpose of determining the respective rights of all the parties defendant in the lump-sum award. The defendant Patzer joined in the motion, which was denied by the court. The defendant owners filed a statement of costs and disbursements wherein they represented that $3,500 was the reasonable value of the services rendered by the attorneys for said defendant owners. The defendants Winkenwerder and Patzer also sought separate allowance of attorney fees. All claims for separate allowance of costs and attorney fees were denied by the court, and an order was made allowing to all of the defendants jointly, certain costs and disbursements and a single lump sum of $4,500 as attorney fees. The defendant owners filed notice of appeal from the judgment "and the whole thereof". A separate notice of appeal was filed by the defendant owners from the following orders:
1. The two appeals of the defendant owners have been consolidated. The defendant Patzer filed notice of appeal from the judgment of condemnation but not from the supplemental orders. He has filed no bond, and presented no bill of exceptions or brief. His appeal must be deemed abandoned. Defendant Winkenwerder has not appealed.
We have summarized the pleadings of the nonappealing defendants because it appears necessary for an understanding of the appeal of the owners.
The defendants assign as error the giving of the following instructions, to which exception was duly taken:
The instruction given was in accord with the theory of the state. It contended, in substance, that there was no highway in existence across any portion of the defendants' property until the bringing of the instant suit. The state therefore argues that, although, as an abstract statement of law, it is true that owners are entitled to damages for the taking of easements of access, that rule is not applicable to the case at bar "because it assumes that the defendants have an existing right of access." The state argues that since there was no highway in existence there could have been no right in the nature of an easement of access.
*227 The Constitution of Oregon provides that
The statute under which the plaintiff is proceeding provides, in part, that the State Highway Commission may, under certain conditions, which are specified, commence an action in the circuit court
2-7. From the generality of the language employed in the statute, it appears that the state is authorized, in a single action, to do what it has attempted in the pending case, namely, to condemn a non-access highway and thereby to acquire the fee of privately-owned property, to the exclusion of any right of entry appurtenant to the land not taken. The provisions whereby action may be brought for determining the compensation to be paid for a right of access, and the damages, if any there be, for the taking thereof, indicate by implication, the view of the legislative body that the right of access may be a right for which compensation is to be paid, and that the damages, if any there be from the taking, are to be assessed and paid. However, the statute does not apply exclusively to cases in which the state seeks to acquire new land in fee for a non-access *228 highway. The act is equally applicable to cases in which the state seeks to convert a conventional highway into a non-access highway by condemning only an easement of access. When a conventional highway is established, there is attached to the abutting land an easement of access in, and to, the highway. Such easement is a property right which cannot be extinguished without compensation. This is clear, and it is conceded by the state. Even where the fee of a conventional highway is in the state, it is subject to an easement of access appurtenant to the abutting land. Willamette Iron Works v. O.R. & N. Co., 26 Or 224, 37 P 1016; Sandstrom v. Oregon-Washington Ry. & Nav. Co., 75 Or 159, 146 P 803; Tooze v. Willamette Valley Southern Ry. Co., 77 Or 157, 150 P 252; Bostwick v. Hosier, 97 Or 125, 190 P 299; Ail et ux. v. City of Portland, 136 Or 634, 299 P 306; Morris v. City of Salem et al., 179 Or 666, 673, 174 P2d 192. The rule is definitely settled in the recent case of Sweet v. Irrigation Canal Co., 198 Or 166, 254 P2d 700, 256 P2d 252. See also Bohm v. Metropolitan El. Ry. Co., 129 NY 576, 29 NE 802; People v. Al G. Smith Co., Limited, 86 Cal App2d 308, 194 P2d 750; Rose v. State, 19 Cal2d 713, 123 P2d 505; Anzalone v. Metropolitan District Commission, 257 Mass 32, 153 NE 325; Petition of Burnquist, 220 Minn 48, 19 NW2d 394. But the fact that the establishment of a conventional highway creates in the abutting land the attributes of a dominant, and in the highway the attributes of a servient tenement, does not require the conclusion that such attributes are created when land for a new non-access highway is condemned. This action was brought to extinguish and compensate for all rights of the defendants in the property taken. It extinguishes the right of the defendant to enter, from *229 his abutting land, the land which once belonged to him, but which now belongs to the state. The same right would be lost to the owner if he had sold the tract to a private individual instead of losing it by condemnation to the state. He would have no right to enter the land sold from the land retained. But this does not mean that he would have had, and then lost, an easement appurtenant to a part of his land for access to another part. It means merely that the statute authorizes the acquisition by condemnation of a fee which is essentially unlike the taking for a conventional highway, and is essentially like the fee which a private individual would acquire by purchase, which of course, would imply no right of access over the vendees' land by the vendor. To be sure, the analogy is not perfect. The state, in acquiring a non-access highway, is taking only for public use, but by authority of the statute, it is taking rights similar in extent to those acquired by private purchasers, and it is devoting such enlarged rights to public use.
8. Since the statute may be employed, either to extinguish conceded and existing easements in a conventional highway, or to take new land for a non-access highway, the statutory provision authorizing compensation for rights of access carries with it no implication that an easement of access, which never existed before, is created by filing an action to condemn a non-access highway, and then, eo instanti, extinguished by the bringing of the same action. The constitution requires compensation for the taking of an easement only if there is an easement to take. If there was none, then the statute which authorizes compensation for such easements does not apply. Whether there is any such property right in the nature of an *230 easement, when new land is condemned for a non-access highway, is the question for determination.
9, 10. Reduced to its simplest terms, our problem is to determine at what point we should hold that the police power ends and the power of eminent domain begins. 11 McQuillin 263, Municipal Corporations (3d ed, Smith, 1950); Philadelphia v. Scott, 81 Pa 80, 22 Am Rep 738; 3 Stanford Law Rev 298, 302. Private rights relative to highways may be regulated in many ways under the police power, and that without compensation. If the action of the state amounts to a "taking", then the principles based upon the constitution control and the state must proceed by condemnation. Unfortunately, the statement of the formula does not answer the questions involved. In general, the regulation of highway traffic is within the police power. This includes the establishment of one-way streets, the establishment of traffic lanes, regulations as to speeding and parking, regulations of abutting owners, along with the general traveling public involving circuity of travel, as where one living on a southbound divided street desires to go north, regulations limiting permissible "U" turns, and changes in the highway system resulting in the reduction or increase of the volume of traffic on the highway fronting the property of an owner. See Clarke, The Limited Access Highway, 27 Wash Law Rev 111; Cunnyngham, The Limited Access Highway, 13 Mo Law Rev 29; State ex rel. Suksdorf v. Superior Court in and for Klickitat County, 169 Wash 195, 13 P2d 460; 25 Am Jur, Highways, § 253; 40 CJS, Highways, § 232; Jones Beach Blvd. Estate v. Moses, 268 NY 362, 197 NE 313; City of Chicago v. Spoor, 190 Ill 340, 60 NE 540; Rose v. California, 19 Cal2d 713, 123 P2d 505; City of Stockton v. Marengo, 137 Cal App 760.
*231 11. One of the traditional and prime functions of the conventional street and highway is, and will remain, that of a "land-service road" providing rights of ingress and egress to and from the property of abutting owners for the benefit of such owners, their invitees and the public. We have seen that where such rights have once become vested, it is almost universally held that they can be divested only by condemnation of the easement appurtenant to the abutting property. In direct contrast with the land-service function of the conventional highway is the purpose and function of the non-access freeway or throughway. The congestion of population in the cities, the amazing increase of rapid automobile transportation, the delays and perils incident to the use of the conventional two way unrestricted-access highways have rendered imperative the establishment of non-access or limited-access highways or freeways in the interest of the public convenience and necessity. 3 Stanford Law Rev 298; 27 Wash Bar Journal 111.
It is reliably reported that travel upon our inadequate highways results in 40 thousand deaths, a million-and-a-half injuries, and property damage of 2 billion dollars a year, and that these staggering losses have been materially reduced wherever modern non-access highways have been established.
In Schnider v. State, 38 Cal2d 439, 241 P2d 1, the plaintiffs brought an inverse condemnation proceeding against the state, seeking compensation on account of the alleged deprivation of a right of direct access. They owned lots which were separated from a conventional highway by an intervening strip of land which was owned by others. Thereafter, the highway *232 commission authorized the reconstruction of the highway as a limited-access freeway. The intervening strip of land was acquired by the state, thereby widening the highway so that it thereafter abutted upon the plaintiffs' land. The facts created a clear test as to whether land abutting on a non-access highway, but which had never abutted on the conventional highway, acquired any property right of direct access. The trial court held that the plaintiffs were not entitled to compensation for the taking of such alleged right of access. The case went to the Court of Appeals and thence to the Supreme Court. The latter court, by Gibson, C.J. said:
As said in City of Los Angeles v. Geiger, 94 Cal App2d 180, 210 P2d 717, 724, "There can be no detriment to a right which never existed and no compensation for a loss not sustained. * * *"
In People v. Thomas, 108 Cal App 832, 239 P2d 914, proceedings were instituted for the acquisition of a limited-access freeway where no highway had previously existed. On appeal the defendants claimed that error was committed in excluding any damage for severance of access rights. The court said:
In this connection we quote from an article in the Stanford Law Review which merits consideration by reason of the excellence of its reasoning:
*235 12, 13. We conclude that there is no "taking" of an easement of access when a new non-access highway is established by condemnation. An easement implies the existence of a dominant and servient tenement. To assume the existence of an easement appurtenant to land there must be presupposed two tracts of land in separate ownerships. Petition of Burnquist, supra, 220 Minn 48, 19 NW2d 394; Restatement, Property, Servitudes, §§ 450, 453, 455, 456, 497. Our conclusion that there was no easement of access and that none was condemned is not decisive of the further question as to whether the non-access character of the highway was relevant on the issue of consequential or severance damages to the remaining property. The effect which the unique and total character of the condemnation may have upon the market value of the property not taken, presents an issue which is not dependent upon the existence of an easement. We again quote from the article in Stanford Law Review, cited supra:
14-16. In this case, the so-called non-access road deprives the defendants of all direct access thereto, although they will still have the possibility of access to the new highway by a long and circuitous route. Land *236 of the defendants which was taken by condemnation extended southerly to the navigable water of the Willamette River. By reason of the non-direct access character of the land taken, the remaining land which lay to the north of the new highway was deprived of its former direct access to the river. In any event, whether the market value of the land not taken was affected by the "more complete severance" resulting from the character of the highway appropriated, was a question to be determined by the jury upon the evidence. This action is brought pursuant to the provisions of OCLA, § 100-116 as amended by Oregon Laws 1947, chapter 283. Both parties rely upon its provisions, and no reference, either in brief or argument, has been made to Oregon Laws 1947, chapter 226, p 286, relating to the powers of the State Highway Commission. In our opinion, section 16 of the last-mentioned act fortifies our conclusion that the jury was entitled to consider specifically the non-access character of the highway being established when determining the severance or consequential damages to the land not taken. Section 16 reads as follows:
*237 The language employed recognizes the two types of compensation established by our decisions interpreting the constitutional requirement of just compensation. They are (1) the value of the land taken, and (2) damages to the remainder. Section 16, supra, provides that evidence as to the plan of the improvement is relevant to the determination of both types of compensation, and it specifically authorizes the jury to consider the deprivation of any right of access in determining the damages to the remaining property. Item (2) of section 16 is applicable only to the situation described in item (3), i.e., where the property sought to be condemned constitutes a part of a larger tract. If the state should take the entire property, no question as to deprivation of right of access could arise. However, item (2) was appropriately inserted in the statute to cover cases in which an old conventional highway is "established" as a throughway and in which case, as we have held, there would be a "taking" of the preexisting easement appurtenant to the land not taken. The statute does not provide or imply that damages by reason of deprivation of right of access shall be fixed separately from other damages to the property not taken, but only that such evidence is relevant in the assessment of such damages. Any other construction would imply an intention on the part of the legislature to confer a gratuity on the owner over and above the limits of just compensation, and would impliedly authorize a duplication of the same element of damages under items (2) and (3) of section 16. In any event, we think it was a question of fact whether the market value of the land not taken was affected by the "more complete severance" resulting from the non-access character of the highway appropriated. The legal *238 situation is analogous to that presented in Cooley v. Boston & Maine Railroad, 303 Mass 371, 21 NE2d 953, 122 ALR 1166. A railroad right-of-way which had been acquired by eminent domain bisected the owner's land. The Supreme Court, by Justice Qua, said:
The cases on this point are not entirely in harmony, but the reasoning of the Massachusetts case seems to us conclusive when applied to the taking by eminent domain of a non-access highway, for no right of access can be implied contrary to the express provisions of the statute. See 122 ALR 1171, note; 44 Am Jur, Railroads, § 117, p 329. It follows that the damages awarded to a land owner may include an element of loss by reason of a depreciation in the market value of the remaining land by reason of the peculiar nature of the appropriation.
17. In Portland-Oregon City Ry. Co. v. Penney, the railroad corporation brought an action to condemn a right-of-way through plaintiff's land. The condemnation for such a purpose involved a limitation of access to the strip condemned, somewhat analogous to the limitation involved in the establishment of a non-access highway. The court said:
This general rule was invoked in People v. Al G. Smith Co., Limited, supra, 86 Cal App2d 308, 194 P2d 750, where the state condemned the access rights of the defendants in a conventional highway, thereby converting it into a freeway. The only issue related to the effect upon the land outside of the limits of the highway. The court held that the facts brought the case within the rule that "`Where private property is taken for a public use and damage results to the remaining property of the landowner, compensation for such damage must be awarded which is measured by the diminution in value of that property which remains.'" Since, in that case, the only right taken was the right of access, the case is authority for the proposition that the extinguishment of such right is relevant on the issue of damage, if any, to the remaining property. The same rule is followed when condemnation is brought to acquire a conventional highway. Pape et al. v. Linn County, 135 Or 430, 296 P 65. We hold that the peculiar character of the appropriation is relevant to the issue of damages to the portion of the land not taken.
18. Returning to the instruction given in the case at bar, we see that the instruction was limited to the proposition that there was no separate property right in the nature of an easement. It was the nonexistence of an easement which was not to be considered in determining the fair cash market value of the defendant's property. It is true that the instruction *240 might better have clearly distinguished between the existence of an easement on the one hand, and the question of a possible depreciation of the market value of the remaining land, on the other. The court did not say that there could be no depreciation in the market value by reason of the nature of the condemnation. The exception taken by the defendants did not call to the attention of the court the distinction between the taking of an easement and the depreciation of market value, nor did the defendants request any instruction to the effect that the jury might consider the non-access character of the land taken, in determining the depreciation, if any, of the market value of the remaining land. However, the court did instruct, in general terms, that the defendants were entitled to compensation measured by the fair cash market value of the land actually taken "plus the amount, if you find there is any, by which the fair cash market value of the remainder * * * has been depreciated solely as the result of the appropriation * * *." Again, the court instructed the jury to determine the damages, if any, to the property not taken, on account of the rights asserted by the Highway Commission. Under the instructions, we think the jury were entitled to consider the effect of the non-access quality of the condemnation in determining the depreciation, if any, in the remaining property, and we find no evidence that they may not have done so. See State ex rel. Sullivan v. Carrow, 57 Ariz 434, 114 P2d 896; Boxberger v. Highway Commission, 126 Colo 526, 251 P2d 920; Case v. State Highway Commission, 156 Kan 163, 131 P2d 696. The giving of the instruction to which exception was taken did not constitute reversible error.
The proposition most earnestly urged by the defendants is that the court erred in refusing to permit the three sets of defendants; one, the owners; two, Patzer; and three, Winkenwerder, separately, to plead and prove their separate damages and to receive a separate award by the jury. Thus they challenge the instruction that the award should be made by the jury in a single lump sum. Since the owners are the only appellants, we limit the inquiry to a consideration of their rights. The situation of the owners is clear. They held the fee, subject to whatever rights there were in the two leases, Patzer and Winkenwerder. The lease from the owners to Winkenwerder was for a period of three years, ending on 14 November 1952. It was drawn along conventional lines, with the possible exception of a provision to the effect that the lessee expected to secure a license to sell alcoholic beverages and that if he failed to secure the license, he should have an option to cancel the lease. The lease to Patzer was somewhat more complicated. The term was for 10 years, ending on 31 August 1958. The lease recited that it was contemplated that the lessee would erect a building of a size 30 feet by 60 feet to cost approximately $10,000. At the expiration of the lease the lessee agreed to sell, and the lessors to buy, the building, at a price of $5,000. The other provisions of the lease were of standard character. Both leases were introduced in evidence. Evidence was received as to the effect of the leases upon the market value of the whole. Much of it was relevant as to the highest and best use to which the land was adapted. An expert witness for the state testified that ground leases were the best use to which *242 portions of the land could be put. Evidence was offered as to the present value of the building constructed by Patzer, as of the date of the appropriation. The court instructed the jury that they might consider his leasehold interest and also "as a part of the whole, the fair cash value of the improvements * * *." The court also instructed that if any part of the land included in the Winkenwerder lease was taken, they should consider his leasehold interest. Thus, it is apparent that the jury were permitted to consider the elements which would affect the market value of the tract as a whole. The complaint of the owners on this phase of the case is not that such evidence was excluded but that the various defendants were improperly deprived of a separate proof of the value of the separate interests and a separate assessment of damage as to each interest.
19-22. In State ex rel. McCaskill v. Hall, 325 Mo 165, 28 SW2d 80, 69 ALR 1256, proceedings were brought to condemn a single tract of land in which the fee was held by one group of persons; leases were held by others (one lease to run to the year 2001), and subleases were owned by others with option of renewal. Some interests were held by trustees and some of the leaseholds were subject to mortgages. A sublessee brought mandamus to compel a separate assessment of the value of his leasehold. He asserted that a failure to separately assess his damage would be violative of his rights under state and federal constitutions. He asserted that in securing his proper portion of a lump sum award, he would be subjected to the expense of litigating with others who also claimed interests in the land, for which expense he would receive no compensation, and he argued that by reason *243 of such litigation he might be dispossessed long before he received compensation. The Missouri court cited as the general rule the following which is taken from Lewis on Eminent Domain:
The same rule is laid down in Nichols, The Law of Eminent Domain, 3d ed, § 12.36, as follows:
To the same effect see Orgel on Valuation Under Eminent Domain, § 107, p 362; 29 CJS, Eminent Domain, § 197, pp 1102-3; Morgan v. Willman, 318 Mo 151, 1 SW2d 193, 58 ALR 1518, 1526; Barnes v. City of Springfield, 268 Mass 497, 168 NE 78; Eagle Lake Improvement Co. v. United States, 160 F2d 182 (CCA 5th); Grand River Dam Authority v. Gray, 192 Okla 547, 138 P2d 100; Herr v. Board of Education, 82 NJL 610, 83 A 173; In re Allen Street and First Avenue, 256 NY 236, 176 NE 377; Phillips v. United States, 151 F2d 645 (CCA 7th); United States v. 25.936 Acres of Land, 153 F2d 277, (CCA 3d); Ross v. The Elizabethtown and Somerville Rail Road Co., 20 NJL 230; State by Youngquist v. Anderson, 176 Minn 525, 223 NW 923; State ex rel. Long v. Superior Court, 80 Wash 417, 141 P 906; St. Louis v. Rossi, 333 Mo 1092, 64 SW2d 600.
23, 24. The defendant owners, confronted by this impressive weight of authority, nevertheless argue that a lump-sum award amounted to a taking of their property without just compensation under Oregon Constitution, Article I, § 18. They call attention to the wording of the statute under which the action was brought. OCLA, § 100-116, as amended by Oregon Laws 1947, ch 283, p 391, outlines the procedure to be followed "to acquire real property". It refers to the compensation to be paid "therefor" and to the damages for the taking of "such real property". It then authorizes "appropriate suit or action" for the condemnation "of such interests as such owner or owners may have in said real property". The defendants assert that the constitution deals with persons, *245 not tracts of land, and quote from Boston Chamber of Commerce v. Boston, 217 US 189, 54 L ed 725 (1910), wherein such language was used. In that case it is said that the constitution does not require a disregard of the mode of ownership, or require a parcel of land to be valued as an unencumbered whole when it is not held as such. The court also said that the question is what the owner lost, not what the taker gained. However, it is unnecessary for us to decide whether the constitution requires the valuation to be in a lump sum. The very great weight of authority establishes that the constitution permits valuation in that manner. It is true, as the defendants say, that the constitution deals with persons, but the condemnation statutes deal with land. The action may be commenced, as in many tax statutes, against the person or persons in whose name the record title appears. The statute adds that lessees or other persons having or claiming an interest may be included. Such proceedings have repeatedly been held to be in rem, although, of course, the pleadings, as a rule, though not always, carry the names of the owners as defendants. 2 Lewis on Eminent Domain, § 512, p 928. Citing many cases, State ex rel. Long v. Superior Court, supra, 80 Wash 417, 141 P 906; Grand River Dam Authority v. Gray, supra, 192 Okla 547, 138 P2d 100. In Eagle Lake Improvement Co. v. United States, supra, 160 F2d 182, 184, (CCA 5th) the court said:
Duckett & Co. v. United States, 266 US 149, 69 L ed 216.
*246 25. The statutory provision that the defendant may answer and allege the true value of the real property and the damage resulting, is not inconsistent with the holdings that it is property which is taken, and that the taking of property is the object of the proceeding. Of course, land cannot answer the complaint.
In some states there are statutes expressly providing for the separate valuation of separate interests in the same tract. See State v. Platte Valley Public Power & Irrigation Dist., 147 Neb 289, 23 NW2d 300; Town of Perry v. Thomas, 82 Utah 159, 22 P2d 343; State ex rel. La Prade v. Carrow, 57 Ariz 429, 114 P2d 891. There is no statute authorizing or requiring such procedure in this state.
The defendants rely especially upon Boston Chamber of Commerce v. Boston, supra. The Chamber of Commerce owned land in the heart of Boston which it had acquired by deed, and which deed reserved to the grantor rights-of-way; light and air, over approximately one-fifth of the tract. Thereafter the city of Boston laid out a public street over most of the land which was covered by the private easements. The Chamber of Commerce and the holder of the easement, which was appurtenant to the land of the third party, filed a petition for assessment of damages, and astutely stipulated that the damages might be awarded in a lump sum to all parties interested, without apportionment. The building of the Chamber of Commerce fronted upon the private easement, and the keeping of the space open for travel was of great benefit to it. On the other hand, the private easement was of great benefit to the dominant tenement, but obviously the public street over the same area was of equal value. It was stipulated that if the separate interests *247 of the parties were valued separately, the damages would be $5,000, but it was contended that if the property condemned was treated as if it were the property of one owner in fee simple, the value of the land taken would be $60,000. Under these peculiar circumstances, the Supreme Court of Massachusetts held that the separate interests should be valued separately. The result was a drastic reduction in the sum total of the awards, which was far below the market value of the tract treated as a fee under single ownership. It seems apparent that the defendants in the case at bar can gain no comfort from that case.
It has been suggested that Mayor and City Council of Baltimore v. Latrobe, 101 Md 621, 61 A 203, is contrary to the general rule which requires a lump-sum award. This is by no means clear. In any event, that case involved tenures which were peculiar to ancient land holdings in the state of Maryland which were later abolished. The fee was subject to an "unredeemable ground rent for 99 years, renewable forever." The court recognized the validity of the general rule as we have stated it, and the real issue considered in the case related to the proper apportionment of compensation between the owner and the holder. The contention of the condemnor was that the owner was not entitled to any compensation under the circumstances. The court rejected this contention and considered at length the relative interests of the parties, and concluded "that in this case the rent can and should be apportioned" in view of the fact that a part only of the land had been taken. The case is distinguishable. In a few instances it has been held that when the owner of land grants an easement *248 with the provision for reversion in the event that the grantee ceases to use the property for the purpose for which the easement was granted, and especially where the land taken is shown to be mineral-bearing and of value separately from the use of the surface, the owner of the reversion should have a separate valuation. These cases also frequently fail to distinguish between a separate valuation on the one hand, and the apportionment of a lump-sum award on the other. There are, of course, cases in which juries or commissioners are authorized by statute, not only to determine lump-sum valuation, but also to apportion the award. But this does not imply any rule that the separate amounts apportioned to the owners of different interests may exceed the market value of the whole.
In United States v. 250 Acres of Land, 43 F Supp 937 (DC Tex), one person owned the mineral rights, and the other, rights in the surface. The district court held that the commissioners should report, not only the value of the entire title, but also the value of each separate interest. But it is apparent that the court was considering the matter of apportionment rather than the valuation of the separate interests, for it said:
26. The decisions of this court as to the measure and amount of compensation clearly imply that all interests in the land are to be valued in a lump sum. The measure of damages is the actual cash market value of the land, condemned, plus the depreciation, if any, *249 of the value of the land not taken. Portland-Oregon City Ry. Co. v. Penney, supra, 81 Or 81, 158 P 404; State ex rel. v. Hawk et al., 105 Or 319, 208 P 709; Keane et al. v. City of Portland et al., 115 Or 1, 235 P 677; State v. Mohler et al., 115 Or 562, 237 P 690 239 P. 193; La Grande v. Rumelhart et al., 118 Or 166, 246 P 707. The matter of setting off direct benefits against damages to the land not taken is not involved in this appeal and is not discussed.
We have reserved until now the consideration of Portland v. Postill, 123 Or 579, 263 P 896. In that case the city instituted condemnation proceedings under the provisions of its charter. The property was owned by a corporation and Postill was the lessee of a building thereon. Based on a report by the city engineer, and after notice and hearing, the council fixed the amount of compensation for the taking. Pursuant to authority of Oregon Laws 1925, ch 294, the lessee Postill appealed to the circuit court and alleged that the city had awarded the damages to the owner and none to him. He set up his 10-year lease and described substantial improvements made by him on the leased premises and concluded with a prayer for a separate assessment of his damages. The case was tried by a jury which fixed the total amount of compensation for the taking and in addition separately determined the amount of damage suffered by the lessee, which was included in the total. The owner was not a party to the proceedings in the circuit court and could not be bound by the apportionment. Consequently the judgment recited that the apportionment made by the jury to the lessee was advisory only. A lump-sum judgment was entered "to be paid * * * to whomsoever may be hereafter ascertained to be entitled thereto * * * and it is further intended that the division of *250 said gross amount shall be hereafter made when all of the parties shall have an opportunity to be heard thereon." Postill was awarded his costs.
From this judgment Postill alone appealed to this court. The argument on appeal was not based on any claim that separate awards must be made or could be made in amounts exceeding the total value of the property if held in a single ownership. The argument was that the charter required separate apportionment of the share of the lessee, to which the lessee asserted a constitutional right. This court held that the charter contemplated the award of damages in a lump sum and that the segregation be made after the gross sum had been ascertained and deposited with the city treasurer.
We quote:
The court further intimated that if controversy should arise between the owner and the lessee as to their respective shares, it should be settled as provided in the charter. The charter provided that such controversy should be determined by the council after hearing, and subject to appeal, and added, "`or the council may direct that a suit of interpleader or other proceeding be instituted.'"
We are not concerned with the interpretation of the city charter in the Postill case, but that decision did directly hold that the making of a lump-sum award *251 subject to later apportionment was "not in violation of any prescription of the Constitution." That case is decisive on the constitutional issue which is here presented. On the issues of statutory construction and procedure, we rely upon authorities cited from other jurisdictions.
27. We conclude that, except perhaps under extraordinary circumstances, when actions are brought for condemnation of land, which are triable before a jury, that body should return a verdict in a single lump sum, representing the fair market value of the land taken, and the net depreciation, if any, of the part not taken. In this case we find no circumstances requiring any departure from the general rule.
28, 29. There remains the important question raised by the fourth assignment of error as to how, when, and by whom, the apportionment of the damages should be made, as between the lessors and the several lessees. The Oregon statute under which the action was brought, and the judicial opinions from other states, demonstrate that the condemnation proceedings, as such, ended when the jury made its award and the damages assessed were paid into court by the state. At that point judgment is entered appropriating the property to the state.
The statute provides:
Excerpts from Nichols on Eminent Domain support our conclusion:
The learned author then points out that both lessor and lessee are entitled to share in the award according to their respective interests. He then says:
Again, on the authority of cases cited, it is said:
30. While recognizing that a court in the proceeding to assess damages has no equitable powers, 18 Am Jur, Eminent Domain, p. 1007, § 364, the authors of that text continue"
The same rule is recognized in the federal courts:
Since the condemnation was complete when the money was paid into the court, it follows that the function of the jury was, by that time, fully performed.
31. Issues remain for determination, but they are not issues in a condemnation action, for in such actions, the state is a vitally interested party, and in the subsequent apportionment of the fund between parties who have appeared in the case, the state is not interested. The vital question is not concerning the duty of the state; it concerns the duty of the court. As applied to the pending case, the question is limited to the situation in which all of the persons having property rights in the land are before the court as parties. It *254 may be that the state would be interested in apportionment proceedings if claimants who had not been parties in the condemnation action were permitted or required to intervene in proceedings for apportionment and to litigate questions of title in the land, prior to condemnation; but that problem is not now before us.
Various procedures have been approved for the apportionment of the fund. If the fund has been paid to one of the owners, another, who had a property right in the land, has been permitted to sue for money had and received, an action based upon equitable principles. Harris v. Howes, 75 Me 436. We think that a rule which would require this type of procedure would be unjust to all parties having interests in the property. The one to whom the money was paid may have spent or concealed it and the other should not be put to the expense of an independent suit to secure his share in the fund which represents his former interest in the land. Furthermore, the one to whom the money was paid should not be subjected to two suits by reason of the condemnation, when one would suffice.
In a number of cases it has been held that the money should be paid to the court and the parties permitted or required to interplead. From the note in LRA, 1917 A, we quote the following:
In Harris v. Howes, supra, the court authorized an action for money had and received, but it stated that a bill in equity would also lie for recovery for the proportionate share by lessee.
In Mayor and City Council of Baltimore v. Latrobe, supra, 101 Md 621, 61 A 203, the court said:
In Turner v. Woodard, 259 Fed 737 (CCA 1st), the United States instituted condemnation proceedings against land in which mortgagees and lien creditors held interests. In that case the parties had stipulated that the only issue to be submitted to the jury should be the value of the property, and that the court should apportion the fund. The United States was not a party to the stipulation. The court distributed the fund. We quote:
In Department of Public Works and Building v. Porter, 327 Ill 28, 158 NE 366, 369, the court said:
*257 Finally, in Pacific National Bank of Seattle v. Bremerton Bridge Co., 2 Wash 2d 52, 97 P2d 162, 165, the court said:
From State ex rel. Long v. Superior Court, 80 Wash 417, 141 P 906, we quote:
In North Coast Ry. Co. v. Hess, 56 Wash 335, 105 P 853, it was held that the power of the equity court to determine the distribution of the fund was inherent, and existed apart from statute, and, since the fund stands in place of the full value of the land, it is the duty of the court to dispose of the fund in the same manner as it would have disposed of the land for which the fund is substituted.
32. From the authorities cited, and as a matter of sound reasoning, we find that after the state has paid into court the sum awarded by the jury, the condemnation proceedings, as such, are at an end, and judgment vesting title in the state follows. But this leaves in the court a fund in which the former lessor and lessees have interests which are the equivalent in money of the interests formerly held in the land. But while the interests in the land were easily defined by reference to the leases, the determination of the relative interests in the fund may involve the most intricate and difficult problems, for the determination of which, juries are unsuited. The interposition of equity is required. If, as indicated by the authorities, one claimant may implead others who were not parties to the condemnation action and may invoke the aid of equity, we think it follows a fortiorari that similar equitable procedure should be available to those who were parties to the condemnation. In cases of this kind the state is not interested in the apportionment proceedings, nor is it responsible for the expense involved therein. But we think that the making of the apportionment is ancillary to the condemnation proceedings and should be determined without the necessity of bringing a new suit *259 or action. The action of the state has worked a substitution of unknown rights in a fund for known rights in the land, and the law should not throw the parties out of court and require them to institute a separate and independent suit in equity, or to bring an action for money had and received, which would be neither plain, speedy nor adequate, when all the parties are before the court and when timely request is made, as was done in this case, for further proceedings apportioning the award.
33. In addition to the above illustrations, it should be pointed out that the distribution of a condemnation award is analogous to a bill in interpleader, for the condemnor who pays the amount of the judgment into court is discharged from further liability and the land is appropriated to the use of the condemnor. Thereafter, the conflicting claims, if any, can be dealt with as in proceedings following the discharge of the plaintiff from liability by deposit into court of the contested fund in a bill of interpleader. The litigation then proceeds among the claimants to the fund. Since a bill of interpleader is an equitable proceeding, the apportionment of a condemnation award would be similarly an equitable proceeding.
34. The money in the hands of the court was in every true sense a trust fund. Our statute provides that:
The adjustment of the rights of the claimants in the manner proposed, if not technically within the letter of the statute, is at least within its spirit.
35. Another statute provides:
We hold that the trial court was authorized to retain jurisdiction and that it should have conducted a supplemental hearing in this case for the purpose of apportioning the lump-sum award among the owners and lessees as their interests may appear, exercising the powers of equity to that end. Similar action was taken by this court in Spencer v. City of Portland, 114 Or 381, 235 P 279, where we said:
36. The third assignment of error criticizes the instruction which was given concerning a view of the premises. As we read it, the court did not tell the jury that the view of the premises was evidence. In effect, they were instructed that the view might be *261 considered as an aid in understanding the evidence. The assignment is without merit.
37. The fourth assignment raises issue already considered and determined herein. The value of the property is not that which is placed thereon by the testimony of the owners, although their testimony is competent. The measure of damages is as previously set forth herein.
38. The fifth assignment asserts that the court erred in denying to the Burk interests a separate allowance of attorney fees. In the judgment of condemnation, jurisdiction was retained for the determination by the court of the amount of the attorney fees at a supplemental hearing to be held upon that issue. Thereafter an order was made as follows:
We do not know what matters were considered relevant by the trial court in fixing the lump-sum fee. Although it was proper to fix the compensation for the taking of the property as if it were held in a single ownership, the fixing of attorney fees was a different matter. The statute contemplates that the court shall fix "a reasonable attorney's fee". OCLA, § 100-116, as amended by Laws 1947, ch 283. But in this case it is apparent that the interest of the several lessees was in some respects adverse to that of the owners. The owners and the lessees were entitled to separate representation by counsel, and the work of counsel was therefore more involved than it would have been had there been no separate interests in the property. If the trial court considered this aspect of the case in *262 fixing the lump-sum fee, then the total award should stand as made, and the sum fixed should be apportioned to the owners, on the one hand, and to the separate lessees on the other, at the time when the apportionment of compensation is made. If, however, the award of an attorney's fee was made without regard to the additional legal services required by reason of the presence of adverse parties, then the total award should be modified to conform to this opinion. This is a matter peculiarly within the control of the trial court.
We have already disposed of the sixth assignment of error.
There is no merit in the seventh assignment which complains of the exclusion from evidence of a letter written by an attorney, by the Highway Commission.
The cause is remanded to the circuit court with directions to apportion the award of compensation between the owners and the defendant Patzer and between the owners and the defendant Winkenwerder, as their several interests may appear, and to apportion a reasonable attorneys' fee between the parties as may be equitable. | 4964c8920b1e34bf3fe48c5021bcb9e7c6682a8f8c3801ebf5ff1f60dc855e28 | 1954-01-13T00:00:00Z |
0a8e5596-2489-4162-9094-d6bf33bd07f7 | McAdam v. Royce | 202 Or. 245, 274 P.2d 564 | null | oregon | Oregon Supreme Court | Reversed and remanded July 13, 1954.
Costs retaxed September 29, 1954.
*248 Thomas L. Gatch, and Lincoln Stuart Ferris, of Portland, argued the cause and filed a brief for appellants.
Charles D. Dolph, of Portland, argued the cause for respondent. With him on the brief were Harvey Karlin and Bruce Y. Curry, of Portland.
Before LATOURETTE, Chief Justice, and WARNER, LUSK and BRAND, Justices.
REVERSED AND REMANDED.
BRAND, J.
The plaintiff Marie L. McAdam brought an action at law for damages on account of injuries suffered while riding in a taxicab and allegedly caused by the concurrent negligence of the taxicab driver Charles L. Brown and the defendant Robert E. Lee, driver of the car which collided with the taxicab. The defendants Royce were co-partners doing business as the Yellow Cab Company and the defendant Brown was their agent and employee. The defendants Royce will hereafter be referred to as the Cab Company. The complaint also sought judgment against the defendants Gordon V. Nagel and Robert E. Lee by reason of the alleged negligent operation of the car operated by Lee. After two witnesses had testified at length concerning the circumstances of the collision the defendant Nagel, by his counsel, demurred to the complaint and the court granted judgment on the pleadings for said defendant. At the close of the testimony the court dismissed the case as to the defendant Robert E. Lee upon the ground that he was a minor and that no *249 guardian had been appointed for him. The verdict was in favor of the plaintiff and against the Cab Company and Brown and they appeal. The Cab Company was the owner of the taxicab which was operated in the transportation of persons for hire in the city of Portland. The defendant Brown was driving the taxicab in an easterly direction on Northwest Northrup Street, and it is alleged that on reaching a point in the intersection of that street with Northwest 22nd Avenue, he collided with a car driven by Lee in a southerly direction on Northwest 22nd Avenue. The concurrent negligence of both drivers is alleged. The specifications of negligence against the Cab Company and Brown were as follows: (a) Failing to keep a proper lookout; (b) failing to have their automobile under control, and (c) "in failing to have the cab driven by a competent and careful driver who would have operated the same carefully so as to have avoided said collision." Similar allegations of negligence were made as to the defendant Lee.
The first assignment of error relates to the alleged want of verification of the answer of Nagel and Lee. Under the circumstances this could have had no prejudicial effects as to the defendants Cab Company and Brown. And see 71 CJS, Pleading, § 556.
The third assignment reads: "The court erred in failing to compel the attendance as a witness of defendant Nagel, who had been duly subpoenaed * * *". There is no showing that the defendant Nagel was a witness to the collision or had any knowledge concerning it, and there is no showing that his absence prejudiced the appealing defendant in any way. The record indicates that the court had been informed by counsel in chambers that Nagel had undergone an operation and was unable to attend. The court offered *250 to take the jury to his sickbed and take his testimony there. The offer was refused.
1. We will now set forth the fourth and fifth assignments of error:
The third, fourth and fifth assignments all relate to one basic contention of the appealing defendants, which is to the effect that they were deprived of a fair trial because the court dismissed the case against the defendants Nagel and Lee. The Cab Company and Brown concede that the plaintiff could have proceeded against them separately if she had chosen so to do. But they further contend that since the plaintiff proceeded against both sets of defendants in a single action, the dismissal of the case against Nagel and Lee resulted in releasing the defendants Cab Company and Brown.
In support of this contention the defendants say:
*251 In attempted support of this position they cite Murray v. Helferich, 146 Or 602, 30 P2d 1053, and Henry v. Condit, 152 Or 348, 53 P2d 722. Neither of the cases cited supports the defendants' contention, nor we believe, does any other case from any other jurisdiction. The defendants Nagel and Lee were not "released" from liability by the court. The cases against them were dismissed because the court considered the complaint demurrable as to one, and because the court considered that it was without jurisdiction to try the other. Appellants have confused a dismissal and a release. These assignments of error are without merit. See Lane v. Ball, 83 Or 404, 160 P 144, 163 P 975; Furbeck v. I. Gevurtz & Son, 72 Or 12, 143 P 654, 143 P 922; Krebs Hop Co. v. Taylor, 52 Or 627, 636, 97 P 44, 98 P 494.
2, 3. The tenth assignment asserts error in the overruling of defendants' motion for directed verdict. This is one of many cases in which both parties have used blackboard drawings to illustrate the testimony of the various witnesses. The blackboard is not before this court and the record is in such unspeakable confusion that it is impossible for us to know or understand what the witnesses actually told the jury even if the blackboard were here. We are in no better position than if large portions of the testimony had been eliminated from the record. We repeat, and again commend to the consideration of the legal profession what was said in Birks v. East Side Transfer Co.:
The second assignment relates to this same subject. It reads as follows:
The photographic exhibits demonstrate that the taxicab was struck on the left side at and over the left rear wheel, by the front of the Lee car. At the request of counsel for plaintiff, and without objection being made, officer Magness made a drawing upon the blackboard. As a part of the drawing he indicated skid marks of the southbound Lee car, which he said were 22 feet in length. He placed the point of impact "approximately here (indicating)." The witness was asked to demonstrate the skid marks and the record recites, "(witness so demonstrates). There was several that appeared that way. (Demonstrating) that *253 was leading up to this car that were unmeasurable." The record continues:
Speaking of the skid marks which the witness presumed to be those of the taxicab, he said:
The witness sketched a house, apparently located at the northwest corner of the intersection, a matter of some importance in determining the existence of a blind corner at that point. Speaking of the house, he stated that it was 15 feet back of the curb, but failed to state whether he referred to the curb on Northrup Street or on 22nd Avenue. He then described the location of some trees at that corner "(indicating throughout)." The testimony continued in similar vein or in vain. After the drawing had been made and additional testimony had been given, counsel for the appealing defendants said:
Thereafter counsel for the defendants said: "I will withdraw the offer." The assignment is without merit. We are constrained to say, however, that the circuit court cannot be expected to provide a new blackboard for every automobile damage case so as to permit counsel to transport the one which has been used to this court as an exhibit. Counsel recognized that fact. The plain implication is, that if counsel desires to present an intelligible record to this court he should, in the first instance, insist upon employment of a suitable sheet of paper, one as large as the blackboard, if necessary. Sketches drawn by witnesses should be made on such paper, and identifying marks should be placed thereon and referred to in the oral testimony. It is not unlawful to use a blackboard to illustrate the testimony of a witness, but counsel contemplating the possibility of appeal may meet with defeat if he uses it or fails to follow the suggested procedure, or if he clutters the transcript with testimony as to what happened "here", "over there", etc., without making it plain where "here" and "there" are located on the drawing. We are advised that some of the trial courts have already adopted the suggested procedure. We believe others will approve it, and that in proper cases they are empowered in their discretion to require it.
The second assignment claims error in the refusal of the court to permit officer Magness to place his initials upon a photograph "beneath the end of each of those skidmarks". We are not even able to ascertain to which photograph counsel referred. The court *255 made no positive ruling and counsel for the defendant apparently acquiesced.
4. We have already noted that the plaintiff's complaint included as one of the specifications of negligence on the part of the Cab Company the failure to employ a competent and careful driver. We have examined the testimony with care and find no evidence to support this specification of negligence. The appealing defendants requested the court to instruct the jury as follows:
The court refused so to instruct and the defendants assign error. Not only did the court fail to withdraw this specification of negligence from the jury, but it affirmatively instructed the jury concerning the allegations of negligence by the defendant Lee in part as follows:
The failure to withdraw the issue of incompetence was error and it was emphasized by the instructions to the jury concerning the plaintiff's claims upon that issue. The error is further emphasized by the instruction immediately following the one last quoted which states the plaintiff's claim that "the negligence referred to was the proximate cause of said collision * * *."
5. In view of the general confused state of the record, we think the court committed serious and prejudicial error. Other considerations lead to the same conclusion. The transcript which is certified as full, true, and accurate by two "official reporters pro tem" and as true and correct by the trial judge, is binding upon us, notwithstanding the fact that the appealing defendants have set forth a "Glossary of Errata" enumerating over fifty alleged errors and setting forth the "correct reading or believed likely correct reading" in parallel columns. We quote one paragraph of the instructions as certified:
We are loathe to believe that the transcript correctly states what was said, but if it does not, there should be a showing to that effect.
*257 6. In its instructions the court first stated to the jury the charges of negligence against the defendants Nagel and Lee and referred to the allegations of negligence "of the defendants" without specifying which group of defendants was intended. It was only after lengthy instructions of this kind that the court advised the jury that the defendants Nagel and Lee "are no longer in the case." Exception was taken to the instruction given concerning Nagel and Lee and we think they should not have been given. The appealing defendants made a belated request that the court instruct the jury in effect that the dismissal of the case against Nagel and Lee was exclusively the result of procedural law and was not to be taken as indicating any opinion of the court that they were or were not at fault. The trial court invoked a rule of the circuit court as his reason for refusal to give the instruction. Without commenting upon the applicability of the rule, we think it unfortunate that the substance of the instruction was not given.
The second witness called by the plaintiff concerning the circumstances of the collision was the defendant Brown, the driver of the taxicab. This, the plaintiff had a right to do, the obvious purpose being to support a case against defendants Nagel and Lee. But when the latter were dismissed from the case, it left the plaintiff burdened with the adverse testimony of the only person whose conduct, if negligent, could have supported a verdict against the defendant Cab Company.
For the benefit of the profession we observe that there was a large amount of matter included in the abstract of record which had no place there.
The judgment is reversed and a new trial ordered.
*258 Submitted on plaintiff-respondent's objection to defendants'-appellants' cost bill.
Thomas L. Gatch, and Lincoln Stuart Ferris, of Portland, for the appellants.
Charles D. Dolph, Harvey Karlin and Bruce Y. Curry, of Portland, for respondent.
COSTS RETAXED.
BRAND, J.
7. The defendants-appellants having prevailed upon their appeal have filed a cost bill to which the plaintiff-respondent makes objections. Defendants assert a claim for $10.08 paid to the railway express agency for transportation of the documents to this court. The objection to this item is sustained. Menefee v. Blitz, 181 Or 100, 143, 179 P2d 550.
8. Objection is made to the allowance of the amount of $103.90 paid to a surety company for the undertaking on appeal for two years. It was necessary that the stay-bond filed by the appellants should be sufficient to cover the amount of the judgment below plus a reasonable sum to cover costs and disbursements in this court in the event that the appeal should be unsuccessful. The amount of the judgment below was $2,597.30 plus costs and disbursements in the amount of $66.15. We think it was reasonable that the bond should have included an additional sum of $500.00 to cover possible liability for costs and disbursements in this court. Appellants were entitled to secure a bond for the amount of $2,597.30 plus $66.15 plus $500.00. The sum of the three items is $3,163.45. They are entitled to charge one per cent a year upon that amount for two years, or a total of $63.26. The item claimed in the cost bill is $103.90. The objections thereto are *259 sustained and that item is retaxed at $63.26. Barbour v. Johnson, 201 Or 375, 270 P2d 633; ORS 747.100. The cost bill contains an item of $158.00 for the expense of printing the Abstract of Record to which objection is made upon the ground that 46 pages of the Abstract of Record contain matter which had no proper place in the Abstract.
Because of the importance of this matter to the legal profession we will express our opinion as to the specific objections.
9. The answer of the defendants Nagel and Lee is reproduced in the Abstract. Motion for judgment on the pleadings was granted by the trial court as to the defendant Nagel and the case against Lee was dismissed for want of jurisdiction, he being a minor without a guardian. No appeal was taken by the plaintiff and neither Nagel nor Lee were parties to the appellate proceedings. The answer had no place in the Abstract.
10. One page of the Abstract is consumed in setting forth the verification of the answer and the certificate of service therefor. The insertion of this matter was improper. The Abstract sets forth the text of the alias summons and the return of service of the sheriff showing service upon Lee and Brown. Both defendants had appeared and answered. It was improper to encumber the record with this matter. A "Trial Summary" made by the trial court was included in the Abstract. This also was unnecessary.
11, 12. The Abstract sets forth verbatim the original complaint as well as the amended complaint. The text of the original complaint was in this case unnecessary for a full understanding of the questions for decision. It was improperly included in the Abstract. Albert v. Salem, 39 Or 466, 65 P 1068, 66 P 233. The Abstract sets forth a subpoena and return of service on the defendant *260 Nagel which had no place in the printed Abstract. The instructions requested by defendants Nagel and Lee were improperly included in the printed Abstract. "The Memorandum of Law" had no proper place in the Abstract of Record. Two letters to the trial judge which referred to a motion in arrest of judgment and to the withdrawal thereof were improperly included in the Abstract. A motion for judgment notwithstanding the verdict was set forth. The motion was not well taken, but we think it was not inserted with frivolous intent. An affidavit of counsel supporting the motion for judgment n.o.v. contains a narrative of events at the trial which could be ascertained from the pleadings and transcript of evidence. The affidavit was improperly included in the Abstract.
13, 14. In an effort to aid the court, two pages of alleged "errata" in the transcript were set forth in the Abstract. The difficulty is that this court was bound by the certified transcript. The errors might perhaps have been suggested in the briefs if they were apparently typographical, but the errata had no place in the Abstract. The Abstract contains the text of "supplemental instructions" requested by Brown and Royce and a photostatic copy of clerk's entries before appeal. Neither of these matters belong in the printed Abstract, but no objection was made to their inclusion.
15. The last objection to the cost bill is directed against the printing in the brief of 10 pages thereof which are addressed to the third assignment of error. It is asserted that the matter presented was frivolous. The contentions made were certainly not well taken, but we believe they were made in good faith. The same is true concerning three pages of the brief which were directed to the ninth assignment of error. We find that *261 at least 41 pages of the printed Abstract contain matter which was improperly included therein.
The claim of expense in printing the Abstract should be reduced by the sum of $82.00. Costs are retaxed as follows:
This is a suitable occasion to call attention to the rule of this court as adopted 31 March 1954 and which provides that the printed abstract shall contain | 25ddcac2a8354b78ae4f5ee9021dc3a29a3f6c2b0ea9e1f6e81555b9811fca16 | 1954-09-29T00:00:00Z |
7f1c74f4-e5b5-47a3-8aaa-012fb4bdc922 | Hicklin v. Anders | 201 Or. 128, 269 P.2d 521 | null | oregon | Oregon Supreme Court | Submitted on motion to dismiss appeal January 23, 1953.
Denied February 18, 1953.
Reversed and remanded with directions April 14, 1954.
*130 Meindl & Mize, Ray Mize and R.E. Kriesien, of Portland, for the motion.
Ray G. Brown, of Portland, contra.
MOTION DENIED.
LUSK, J.
The case is before the court on motion of respondent, William H. Anders, to dismiss the appeal.
The action was for personal injuries. The appellant, Everett Hicklin, on April 2, 1952, recovered judgment for $15,000.00 against the respondents, Anders and Elbert G. Mulkey, administrator of the Estate of James Joseph Bannister, deceased, hereinafter called the administrator. *131 (Cleo Bannister was later appointed administratrix in the place of Mulkey.) On motion the court set aside the verdict against Anders and entered judgment in his favor notwithstanding the verdict. From that judgment Hicklin appealed, and the administrator likewise appealed from the judgment against him. Hicklin commenced garnishment proceedings against Anders, the administrator, and Pacific Indemnity Company, the administrator's insurance carrier, and recovered a judgment against the garnishee for $5,084.77. Pacific Indemnity Company took an appeal from that judgment. While these various appeals were pending Hicklin and his attorney, under date of January 12, 1953, executed an instrument designated "Covenant" by which they covenanted and agreed, in consideration of $4,750.00, not to proceed further against Pacific Indemnity Company or the administrator on account of Hicklin's injuries
The instrument further provided:
Contemporaneously, the garnishment proceedings and the administrator's appeal to this court were dismissed on stipulation of the parties, and Hicklin, by his attorney, executed a satisfaction of the judgment against Pacific Indemnity Company, garnishee, in the sum of $5,084.77. The instrument of satisfaction further provides that Hicklin
1-5. To support his motion Anders relies on the rule that the release of one or two or more joint tort-feasors releases all. Stires v. Sherwood, 75 Or 108, 145 P. 645. He concedes that in this state, as in most other jurisdictions, this rule has no application to a covenant not to sue. McKay v. Pacific Bldg. Materials Co., 156 *133 Or 578, 68 P2d 127; Murray v. Helfrich, 146 Or 602, 30 P2d 1053; Keadle v. Padden, 143 Or 350, 362, 366, 20 P2d 403, 22 P2d 892. But he argues that in this case the suit is an accomplished fact and therefore an agreement not to sue is meaningless; and that the "Covenant" is in fact an accord and satisfaction which operates as a discharge of the judgment and of both joint tort-feasors, citing 1 Am Jur 257, Accord and Satisfaction §§ 8, 73; Clay v. Hoysradt, 8 Kan 74; Cooper v. Sagert, 111 Or 27, 223 P 943; Restatement, Torts § 886.
It is sufficient to say of the decisions cited that they are not in point. As to the claim that what the parties did amounted to an accord and satisfaction, precisely the same argument was made in McKay v. Pacific Bldg. Materials Co., supra, with respect to the covenant not to sue involved in that case, and was rejected. The only difference between the two cases is that in the one the agreement was made before judgment and in the other after judgment. In the McKay case payment was made in settlement in order to get rid of an unliquidated claim, and in this case in order to get rid of the consequences of a judgment from which an appeal had been taken and was pending. In both the intention is made clearly to appear that the money was not accepted in satisfaction of the entire claim and that the settlement made with one defendant should not affect the injured party's rights against the other. According to 45 Am Jur 702, Release § 37, "There appears to have been an increasing tendency in the later cases to give effect to the actual intention of the parties so far as possible." The numerous cases digested in 124 ALR 1306 and 104 ALR 852 support that statement. See, also, 66 ALR 209 and 50 ALR 1072. Many of the earlier cases are cited in Stires v. Sherwood, supra at p. 113. No reason has been suggested, nor does any occur to us, which *134 warrants the assertion that there is an irreconcilable conflict between the acts of Hicklin and his expressed intention to preserve his rights against Anders.
Our research has discovered but two cases involving similar facts. These are Pertroyeanis v. Pirola, 205 Ill App 310, and Pennington v. Bevering, (Tex) 17 SW2d 772. In the former case the court held that acceptance by the plaintiff of payment of a part of a judgment from one of the joint tort-feasors operated to discharge the other, notwithstanding the expressed intention of the parties that this should not be its effect. There is no opinion in the case, but simply an "Abstract of the Decision", which states the court's conclusions. The opposite result was reached by the Texas court in Pennington v. Bevering, which held that the instrument of release evidenced the intention of the parties that the creditor reserved the right to proceed for the balance against the nonsettling judgment debtor and that this intention should be given effect. In our opinion the Texas court's decision is sound and accords with modern judicial thinking relative to settlements of this kind. At least it can be said for this view of the matter that it "offers a way for a party to buy his peace and allows an opportunity to compromise a doubtful claim without requiring an injured party to forego the right of full compensation against known wrongdoers." Cook v. City Transport Corp., 272 Mich 91, 261 NW 257.
In Black v. Martin, 88 Mont 256, 292 P 577, the court reviewed extensively the judicial decisions and the observations of eminent text writers, showing the disfavor into which has fallen the rule that a release to one of several joint tort-feasors is a discharge to all, and the efforts of the courts to avoid application of that rule whenever possible. Dean Wigmore, according *135 to the Montana court, called the rule a "surviving relic of the Cokian period of metaphysics." The case before the court did not involve an agreement not to sue but a release to one, with a reservation of rights against another joint tort-feasor. Holding that effect should be given to the intention of the parties, the court said:
Dissatisfaction with the "finespun" and "over-technical" law of joint tort-feasors (Cook v. City Transport Co., supra) has led to the enactment of statutes, some of which substantially abolish the rule that a release to one of several joint tort-feasors discharges all, while others provide that releases must be given effect according to the intention of the parties. 45 Am Jur 702, Release § 37. No statute is needed, however, to enable a court to adopt the latter rule, and we, therefore, hold that, since Hicklin's intention in executing the covenant and in partially releasing the judgment was not to release Anders, Hicklin's right to proceed with the appeal against Anders has not been affected, *136 and the motion to dismiss must, therefore, be denied. It need only be added that the payment of $4,750.00 to Hicklin extinguishes pro tanto the amount of damages, if any, which may be ultimately found recoverable by Hicklin from Anders. Murray v. Helfrich, supra; Stires v. Sherwood, supra at p. 113.
Ray G. Brown, of Portland, argued the cause and filed briefs for appellant.
Ray Mize argued the cause for respondent. On the brief were Meindl & Mize and R.E. Kriesien, of Portland.
Before LATOURETTE, Chief Justice, and ROSSMAN, TOOZE and PERRY, Justices.
REVERSED AND REMANDED WITH DIRECTIONS.
TOOZE, J.
This is an action for damages for personal injuries claimed to have been suffered as the proximate result of the negligent operation of two motor vehicles, brought by Everett Hicklin, as plaintiff, against William H. Anders and Elbert G. Mulkey, administrator of the estate of James Joseph Bannister, deceased, as defendants. The trial resulted in a verdict and judgment in favor of plaintiff and against both defendants in the sum of $15,000.
Defendant William H. Anders moved the court for an order vacating the judgment against him and for judgment in his favor notwithstanding the verdict. As an alternative motion he moved for an order to set aside the verdict and judgment against him and *137 to grant a new trial. The trial court entered separate orders sustaining each motion. Plaintiff appeals.
The order allowing the motion for judgment in favor of defendant Anders notwithstanding the verdict is based upon the ground (as stated in the order):
The order granting the motion for a new trial is based upon the alleged error of the trial court in failing to give to the jury one of defendant Anders' requested instructions.
The accident occurred on the Ross Island bridge in Portland, Oregon, just after midnight on March 7, 1951. Ross Island bridge is divided into four lanes for traffic, two for east-bound traffic and two for west-bound traffic. On the night in question, icy conditions prevailed on the bridge, and a truck belonging to the city of Portland was engaged in sanding operations. The sand truck was traveling east in the inside lane of traffic at a rate of speed from three to five miles per hour. Plaintiff and a co-worker were employed on the rear of the truck shoveling sand onto the two south lanes.
Defendant Anders was traveling east on the said bridge using the inside lane. He negligently collided with the sand truck and also with a taxicab traveling *138 east in the outside lane. His automobile came to rest with three or four feet of its rear extending into the outer lane. Shortly thereafter, the automobile negligently operated by Bannister, also traveling east in the inside lane and at a rate of speed of 45 to 50 miles per hour, collided with the Anders car and the truck. Bannister was killed in the accident and, as a result of the second collision, plaintiff suffered the injuries of which he complains.
6. It is now hornbook law in this state that, in passing upon a motion for a directed verdict in favor of a defendant, the evidence in the record must be viewed in the light most favorable to plaintiff. He is entitled to the benefit of every reasonable inference that can be drawn from the evidence in his favor. Glascock v. Anderson, 198 Or 499, 503, 257 P2d 617.
7. It also is well established that the question of whether a particular act was a proximate cause of the injury complained of is ordinarily one for decision by the jury, and it is only where the facts are such that all reasonable men must draw the same conclusion from them that the question of proximate cause becomes one of law for the court. Wintersteen v. Semler, 197 Or 601, 620, 250 P2d 420, 255 P2d 138; Kukacka v. Rock, 154 Or 542, 544, 61 P2d 297.
8. We have carefully examined the record in this case. The evidence is almost conclusive that both Anders and Bannister were negligent in some, if not in all, respects as charged in the complaint. There also is substantial evidence in the record from which the jury might find that the negligence of Anders directly combined and concurred with that of Bannister to proximately cause plaintiff's injuries. It is clear that the negligence of Anders was not the sole proximate cause, but the jury could well find it to be a concurring *139 cause; his negligence had not spent itself at the time of the final impact. The testimony of the investigating police officer as to what Anders told him immediately following the accident as to how the accident happened, although not too definite, was of itself sufficient to make the question of Anders' liability one of fact for determination by the jury. Moreover, as the result of Anders' negligence, and after the collision with the truck, his car at least partially blocked the outside east-bound lane, thereby creating a hazard that the jury might find directly contributed to the later collision with the Bannister car, resulting in the injuries to plaintiff. This case is governed by the rules announced in Birks v. East Side Transfer Co., 194 Or 7, 241 P2d 120.
9. "Negligence" is negligence, whether it be negligence per se because of a violation of a state statute or city ordinance or whether it arises because of the failure to exercise that degree of care and caution that a reasonably prudent person would exercise in like or similar circumstances, such as a failure to maintain proper control or a lookout. Anders' negligence created a hazardous condition that continued to exist at the time Bannister's car collided with the Anders car and the truck, just as the tractor-trailer negligently created a continuing hazardous condition in Birks v. East Side Transfer Co., supra.
The trial court erred in setting aside the judgment and entering judgment in favor of defendant Anders notwithstanding the verdict.
The defendant requested the following instruction:
10. In many prior decisions of this court we have announced the rule that, in considering whether error was committed by the trial court in failing to give a requested instruction, the court's entire charge to the jury must be considered; and if the subject matter of the requested instruction has been adequately covered by the court's own instructions, no error has been committed. For example, see Denton v. Arnstein, 197 Or 28, 54, 250 P2d 407; Phillips v. Colfax Company, Inc., 195 Or 285, 310, 243 P2d 276, 245 P2d 898; Senkirik v. Royce et al., 192 Or 583, 596, 235 P2d 886; Hughes v. Gilsoul, 191 Or 557, 561, 230 P2d 770; Barnes v. Davidson et al., 190 Or 508, 521, 226 P2d 289.
11. We have carefully considered the instructions given the jury and find that the trial judge fully, fairly and correctly instructed as to the law applicable to all the issues in the case, including substantially the subject matter of the requested instruction. It was not error for the court, in the exercise of its discretion, to refuse the giving of the instruction. However, in what we have said we do not wish to be understood as approving the requested instruction in the form presented. For the purposes of this opinion, we need not *141 discuss that phase of the question. The court erred in granting a new trial.
While this appeal was pending, William H. Anders died and Frances E. Anders, as administratrix of the estate of William H. Anders, deceased, has been substituted as party defendant.
The judgment is reversed and the cause remanded with directions to reinstate the judgment in favor of plaintiff. | 8403d6e3838001fc7f01e4d86f148599869edaf4290b47c1b2450bd4b56851b5 | 1954-04-14T00:00:00Z |
d05af35a-ee18-4ed3-a33b-9b7efa5fa34d | Kosydar v. Collins, County Clerk | 201 Or. 271, 270 P.2d 132 | null | oregon | Oregon Supreme Court | Affirmed May 5, 1954.
*273 Norman K. Winslow, of Salem, argued the cause for appellant. With him on the brief was W.C. Winslow, of Salem.
Frank S. Sever, of Portland, argued the cause for respondents. With him on the brief were William T. Hollen, District Attorney, and A.R. McMullen, Deputy District Attorney, both of Newport.
Before LATOURETTE, Chief Justice, and WARNER, ROSSMAN and TOOZE, Justices.
AFFIRMED.
TOOZE, J.
This is a suit for an injunction, brought by John D. Kosydar, as plaintiff, against R.E. Collins, county clerk; Tom M. Skelton, county judge; L.T. Grant, county commissioner; Ray Cox, county commissioner; W.H. Kurlenbeck, sheriff; and John T. Graham, county assessor; all of Lincoln county, Oregon, as defendants. Decree was entered in favor of defendants; plaintiff appeals.
By this suit, plaintiff, a taxpayer and resident of Lincoln county, is making a direct attack upon the *274 validity of an election held in Lincoln county on November 4, 1952 (date of the general election held throughout the state), at which election there was submitted to the legal voters of that county for their approval or rejection an initiative measure providing for the removal of the county seat from Toledo to Newport. At said election there were 4,643 votes cast in favor of such measure and 4,362 votes against it. Pursuant to this majority vote in favor of such removal of the county seat, defendants are proceeding to take the steps necessary to accomplish that result.
Plaintiff does not challenge the actual voting within the county at said election, but he does challenge, in several particulars, the procedure by which the initiative measure seeking to remove the county seat was placed upon the ballot.
The record reveals that on June 12, 1952, there was filed with the county clerk for Lincoln county, an initiative petition for the submission to the legal voters of that county the following proposed local law:
Plaintiff in his brief states his position as follows:
Plaintiff's first proposition presents the principal issue on this appeal. It is far-reaching because, if sustained, every county in Oregon will be affected, as it directly challenges the authority of a county to initiate any measure involving local legislation. The second and third propositions are more or less subsidiary to the first.
On June 2, 1902, Art IV, § 1 of the Constitution of Oregon was amended by vote of the people of Oregon to read as follows:
On June 4, 1906, also by a vote of the people, Art IV of the Constitution was further amended by addition thereto of § 1a, the material portion of which reads:
1, 2. We have uniformly held that a county is a municipality or district, within the meaning of § 1a of Art IV. State v. Mack, 134 Or 67, 69, 292 P 306; Briggs v. Stevens, 119 Or 138, 248 P 169; Schubel v. Olcott, 60 Or 503, 120 P 375. Two classes of municipalities are, in fact, embraced within this provision: (1) cities and towns, or pure municipalities; and (2) all institutions which, though not cities and towns, are nevertheless municipalities within the purview of the constitution. State ex rel. v. Port of Astoria, 79 Or 1, 12, 154 P 399.
In Barber v. Johnson, 86 Or 390, 397, 167 P 800, 167 P 1183, we said:
As to all municipalities, other than cities and towns, § 1a of Art IV provides that "the manner of exercising said powers [initiative and referendum] shall be prescribed by general laws". Cities and towns are given power to provide their own procedure for an exercise of these powers, limited only by the restriction that not more than ten per cent of the legal voters may be required to order the referendum nor more than fifteen per cent to propose any measure by the initiative. However, until cities and towns adopt their own procedure, they are governed by the applicable general laws of the state.
In 1903 the legislature adopted an act to provide for the manner of exercising the initiative and referendum powers reserved to the people under Art IV, § 1, of the constitution. General Laws of Oregon, 1903, p 244.
In 1907, the legislative assembly adopted an act "to provide for carrying into effect the initiative and referendum powers reserved by the people in section 1 and section 1a of Article IV of the Constitution of the State of Oregon on general, local, special, and municipal legislation;" etc. The Act of 1903 was repealed. Ch 226, Oregon Laws 1907.
The Act of 1907 was a complete act, except that it contained no specific procedure for the exercise of the initiative and referendum powers by the people of municipalities or districts, other than cities and towns. It prescribed in detail the manner in which the powers reserved by the people should be exercised in the state at large. Sections 10, 11, and 12 of the Act of 1907 provided the procedure to be followed in the exercise of these powers by the people of cities and towns. It *279 is highly significant that in the procedure so provided, nothing whatever was said about the number of legal voters required on a petition to initiate or refer a measure in a city. In fact, nowhere in the entire act is found a provision respecting that matter, nor has there ever been such a provision in the statutes governing the manner in which these powers may be exercised. As we shall later point out, such a provision is unnecessary because the constitution itself provides for the number of signatures required, not only in the state at large and in municipalities and districts (other than cities and towns), but also in cities and towns.
In 1919 the legislative assembly adopted an act "granting to the people of counties the initiative and referendum powers reserved to the people by sections 1 and 1a of article IV of the constitution, and providing for use and application of such powers." (Italics ours.) Ch 251, Oregon Laws 1919. That statute, comprising one section, provides:
It is evident that no powers were granted to the people by this statute the constitution had already reserved such powers to them but the act did provide for the manner of exercising them. Sections 3470 to 3485, Lord's Oregon Laws, referred to in the statute, was the Act of 1907, as amended.
*280 It will be observed that in the title as well as in the body of the Act of 1919, both sections 1 and 1a of Art IV of the constitution are mentioned. It is apparent from this that the legislature deemed it necessary to consider both sections together.
The Act of 1907, as amended, became ch 21, title 81, OCLA (ORS ch 254, title 23). Sections 81-2101 to 81-2104, OCLA, incl. (ORS 254.010 to 254.040) set forth the form of petitions, the requirements as to the signatures (not the number thereof) and the manner of verifying them, with whom they shall be filed and the duties of the ministerial officers with respect thereof; § 81-2105 (ORS 254.050) provides for the enforcement of the right by mandamus in the event of refusal of the ministerial officer to function; § 81-2106 (ORS 254.070) provides for the ballot title of the measure and printing on the ballot, and § 81-2107 (ORS 254.090) provides that it shall be placed upon the ballot "at the ensuing general election"; § 81-2108 (ORS 254.110) provides for the number of votes necessary to adopt such a measure; § 81-2109 (ORS 255.410) provides for mailing to each voter a copy of the measure prior to election; § 81-2110 (ORS 254.120) provides that the vote shall be canvassed and returned "by the regular boards of judges, clerks and officers, as votes for candidates are counted, canvassed and returned." Section 81-2117, OCLA, is the same as the Act of 1919. Ch 251, Oregon Laws 1919, supra. Section 81-2118, OCLA (ORS 254.340), adopted in 1927 (ch 425, Oregon Laws 1927), provides:
3. From the foregoing brief review of the statutes it is clear that ample provision is made for the manner in which the initiative and referendum powers may be exercised, not only in the state at large, but also in cities and towns, and in municipalities or districts, other than cities and towns, including counties. Hill et al. v Hartzell, 121 Or 4, 8, 252 P 552; Briggs v. Stevens, supra; Barber v. Johnson, supra.
However, plaintiff contends that the procedure provided for counties and other municipalities or districts (other than cities and towns) is incomplete because no provision is made (1) for the number of signatures required upon an initiative or referendum petition, nor (2) for the calling of a special election to vote upon such a measure, including the designation of judges and clerks of such an election, and notice thereof.
It is conceded by plaintiff that the number of signatures required upon measures affecting the state at large is governed by the provisions of § 1 of Art IV of the constitution. We have held that section to be self-executing. State v. Langworthy, 55 Or 303, 308, 104 P 424, 106 P 336.
4. On the other hand, it is manifest that § 1a of Art *282 IV is not self-executing. By its precise terms, general laws prescribing the manner in which the powers reserved are to be exercised are required. State ex rel. v. Portland Ry. L. & P. Co., 56 Or 32, 37, 107 P 958. But it is clear that the requirement for the adoption of general laws relates exclusively to the procedure or manner by which the powers are to be exercised, and has no reference whatever to the substance of the power itself.
5. What then is the substance of the powers reserved to the people of the county or other municipality? To answer this question, we must consider both §§ 1 and 1a of Art IV. It is true, as plaintiff contends, that neither section is ambiguous and, therefore, not subject to the rules of construction usually applied to enactments containing ambiguous language, but that does not mean that the two sections should not be construed together. In fact, that is necessary, because § 1a is to a large extent, dependent upon the wording of § 1 for its own meaning. In Loe v. Britting, 132 Or 572, 577, 287 P 74, Mr. Justice RAND, speaking for the court, said:
6, 7. The substance of the initiative power expressly reserved by the people of the state at large is contained in one complete sentence of § 1 of Art IV; that is, "The first power reserved by the people is the initiative, and not more than eight per cent of the legal voters shall *283 be required to propose any measure by such petition, and every such petition shall include the full text of the measure so proposed." It is clear that the eight per cent provision is not a mere matter of form; it is a matter of substance, a vital ingredient of the power reserved. Although by the last sentence of § 1, legislation prescribing the manner of exercising the powers is contemplated, nevertheless, it is plain that the legislature would have no power to increase the eight per cent limitation by requiring a greater percentage of the legal voters than that to initiate any measure. That also is true respecting this further provision of § 1: "The whole number of votes cast for justice of the supreme court at the regular election last preceding the filing of any petition for the initiative or for the referendum shall be the basis on which the number of legal voters necessary to sign such petition shall be counted." Both provisions are mandatory in character and not subject to change by the legislature. They are incidents of the initiative power itself and have nothing whatever to do with the manner of procedure, although certain parts of the procedure provided are dependent upon them. It is self-evident, therefore, that that is why the legislative assembly never attempted to fix the percentage of signatures necessary upon either an initiative or referendum petition. It recognized the self-executing and binding nature of the constitutional restrictions.
Now let us turn to that portion of § 1a of Art IV which is material to this discussion. First, it is there provided: "The initiative and referendum powers reserved to the people by this constitution, are hereby further reserved to the legal voters of every municipality and district, as to all local, special and municipal legislation, of every character, in or for their respective *284 municipalities and districts." (Italics ours.) Plainly, the words "by this constitution" can refer only to § 1 of Art IV. It, therefore, becomes necessary to look to § 1 in order to determine just what powers are being further reserved to the legal voters of the municipality and district. One of the powers so being further reserved is the initiative power as defined in § 1. As we have before observed, an important and inseparable element of that initiative power is the provision that not more than eight per cent of the legal voters (determined by the number of votes cast for justice of the Supreme Court) may be required to propose any measure by initiative petition. Hence, under that express provision of § 1a of Art IV, eight per cent only of the legal voters were required to propose a measure by initiative petition, in any municipality or district of the state. That is the power further reserved. This provision standing alone applies to all municipalities and districts, including cities and towns. However, it is provided that the manner of exercising said powers shall be prescribed by general laws, except that cities and towns are expressly given the power to provide their own procedure as to their municipal legislation. Moreover, it is expressly provided that in cities and towns not more than ten per cent of the legal voters may be required to order the referendum nor more than fifteen per cent to propose any measure, by the initiative. Such provision relates exclusively to cities and towns and can have no application whatever to other municipalities or districts, such as counties. The very fact that the ten per cent and fifteen per cent provisions related only to cities and towns leads to the inevitable conclusion that counties and other similiar municipalities and districts were intended to be governed by the eight per cent (initiative measure) and five per cent *285 (referendum) provisions of § 1. Under the constitutional provision, the legislature would lack the power to increase the percentages of the number of signatures necessary to initiate a measure in a county, or to refer a measure, although it does have, and has exercised, the power to provide by general laws for the manner of exercising the initiative and referendum powers by the people of the several counties of the state and of other municipalities and districts. Hill et al. v. Hartzell, supra; Briggs v. Stevens, supra. We hold that the procedure provided is ample and complete.
The initiative petitions involved in this litigation were circulated in Lincoln county and, as certified by the county clerk, were signed by 1,942 legal voters of said county. Plaintiff attacks the validity of approximately 169 of those signatures, leaving, according to his contentions, only 1,773 that are valid. That is immaterial because, even conceding the invalidity of the 169 signatures, the petitions contained far more than the required number in order to have the proposal submitted to a vote. The total vote cast in Lincoln county for justice of the Supreme Court at the general election held on November 7, 1950, was 4,843. Eight per cent of that number of voters is 387. Therefore, a total of only 387 valid signatures was necessary for the submission of the initiative measure in question.
8, 9. We are not impressed by plaintiff's contention respecting the election at which the measure in question was submitted to a vote. He argues that, being a special election which was not called by some law or some lawfully appointed body, it was void. It is true that the county court of Lincoln county did not specially call an election for the purpose of having this measure voted upon; but that was unnecessary, and the statutes *286 governing the submission of such measures in and by counties contain no such requirement. As we have seen, the statute specifically provides that such measures shall be submitted to a vote "at the ensuing general election". The statute itself calls the election. It also provides for the judges, clerks, and other officers for the purposes of the election. No action is required by any official of the county as a preliminary to the holding of such special election, other than that required of the county clerk and of the district attorney. The district attorney prepares the ballot title; the clerk files the petitions, mails to each registered voter a copy of the proposed measure, and causes the proposal to be printed upon the official ballot used at the election. In this case both the district attorney and the county clerk performed the duties imposed upon them by the statute, strictly at the times and in the manner as required by the provisions thereof. Following the election, the county court proceeded according to the requirements of the law. All the proceedings by which the measure was referred to a vote, including the actual voting upon the proposal, were in every way regular and valid. No special notice of the election was given, nor did the statute require such. The mailing of the copy of the measure to each voter constituted the only special notice which was given. That was sufficient. In Barber v. Johnson, supra, at page 397, we said:
Also see Hill et al. v. Hartzell, supra.
We conclude therefore, that the initiative measure providing for the removal of the county seat of Lincoln county from Toledo to Newport was properly submitted to the legal voters of that county at the general election held on November 4, 1952, for their approval or rejection, and that all proceedings in connection with the vote upon such measure were in every way legal and valid.
The decree is affirmed. | 072f2a60b6c467ea2b1a456ef15118f0fe5bf932fde1e5e546ebd081adff7181 | 1954-05-05T00:00:00Z |
53102e72-b807-46f7-a167-39a318a3ceab | State Highway Com. v. Superbilt Mfg. Co. | 200 Or. 478, 266 P.2d 1072 | null | oregon | Oregon Supreme Court | 200 Or. 478 (1954)
266 P.2d 1072
STATE OF OREGON by STATE HIGHWAY COMMISSION
v.
SUPERBILT MANUFACTURING CO. ET AL. and PARK ET AL.
Supreme Court of Oregon.
Submitted on motion to dismiss appeal January 20, 1954.
Appeal dismissed February 17, 1954.
*479 S.J. Bischoff and George W. Mead, of Portland, for the motion of defendant-respondent Superbilt Manufacturing Co., Inc.
John A. Heltzel, of Salem, contra.
APPEAL DISMISSED.
BRAND, J.
This is a motion to dismiss an appeal from an order denying a motion for leave to intervene in a condemnation action brought by the State Highway Commission against the Superbilt Manufacturing Company, Inc., and others. The condemnation action joined numerous parties having or claiming an interest in the property sought to be condemned. The appellants are M.W. Park and M.W. Park, Jr., partners operating as M.W. Park Company, and hereafter called the Parks. The complaint was filed on 31 December 1951. Defendants Arbitman and Greenberg, executors, answered on 25 January 1952, and plaintiff replied on 1 February 1952. The defendants Superbilt Manufacturing Company, Inc., and Milton D. Tarlow answered the complaint on 27 July 1953. Motion to set the case for trial was filed by the executors on 5 October 1953. On 6 October 1953 the Parks filed a motion for leave to intervene and tendered therewith *480 a complaint in intervention. The proposed complaint alleged that on 13 April 1953 (15 months after the complaint in condemnation was filed) the Parks commenced an action which is now pending and has not proceeded to judgment, against Superbilt to recover money alleged to be owing the Parks from Superbilt, and attached certain lands owned by Superbilt. It is further alleged that the land sought to be condemned is a part of the land which was attached. The Parks therefore allege that they have a lien against the land attached as of 13 April 1953 and that such lien will remain on the land attached but not condemned and will also remain as against the fund awarded in the condemnation proceedings as compensation and damages. They claim priority over the liens claimed by the other defendants against the Superbilt land.
On 30 October 1953 the trial court entered an order denying the motion to intervene. We quote the relevant portions of the order:
It is alleged in the brief of the appellants Park that their action against Superbilt has now been reduced to a default judgment but no such statement appears in the record. It will be noted that the motion to intervene was filed 19 months after the filing of the complaint in condemnation.
The complaint in intervention raises no issue as between the would-be intervenors and the State of Oregon concerning the value of the property to be condemned, or the amount, if any, of the consequential damages. It merely seeks protection of the lien against the land attached and against the fund, when the amount of the latter shall be determined. The petitioners Park have no present right to intervene in the condemnation action. The statute authorizing intervention provides that "At any time before trial any person who has an interest in the matter in litigation may, by leave of court, intervene. * * *" ORS 13.130. But the petitioners have shown no interest in the litigation with the State of Oregon. The only trial in which they may be entitled to intervene is the supplemental proceeding in equity discussed in the recent case of State of Oregon, by Highway Commission v. Burk et al., 200 Or 211, 265 P2d 783. The question as to the right or duty of the state to join lien claimants under the provisions of ORS 366.375(2) is not before us. The petitioners had no lien when the condemnation proceedings were instituted and the state has not sought any order joining them as parties.
*482 If the order of the trial court denying the petition in intervention had constituted a final order precluding the petitioners from intervening at any stage of the case, either before or after verdict, then it might be argued that the order was appealable under authorities holding that a statutory right to intervene is not discretionary and that the denial of the application amounted to an order affecting a substantial right, which in effect, determined the litigation so far as the intervenors were concerned. See 18 Am Jur 867, Eminent Domain, §§ 234, 235; 39 Am Jur 935, Parties, §§ 61, 66, 75; State ex rel. Westlake v. District Court, 119 Mont 222, 173 P2d 896; 169 ALR 287. And see ORS 19.010 (2) (a); Anderson et al. v. Harju et al., 113 Or 552, 233 P 848; Timoney et al. v. McIntire, 146 Or 583, 31 P2d 165, 15 ALR2d 336. But the order of the trial court did not foreclose the right of the petitioners to intervene.
In Brune v. McDonald, 158 Or 364, 370, 75 P2d 10, the court said:
The plaintiffs' petition does not show such an interest of a direct and immediate character as is contemplated in the Brune case, nor does the record indicate that petitioners will lose any rights by reason of the denial of their petition. Examination of the order denying the motion to intervene shows that it was not final, but on the contrary was expressly based on a finding that the motion was prematurely made. The order was apparently carefully drawn. It authorizes renewal *483 of the motion to intervene after the jury has made an award for the taking of the property, and it indicates that the court will retain jurisdiction after the award to entertain such motion. The order of the trial court was made before the decision of State of Oregon, by Highway Commission v. Burk et al., supra, but the theory of the trial judge is in harmony with that decision.
1, 2. In the Burk case we held that the trial court was authorized to retain jurisdiction after the condemnation action as such had terminated in a verdict of the jury followed by an unequivocal appropriation of the land and that the court was empowered to conduct a supplemental hearing in the same case for the purpose of apportioning the lump-sum award among the owners as their interests might appear, "exercising the powers of equity to that end." In that case the various claimants were all parties in the original proceeding but we see no reason why in the pending case the petitioners Park should not be permitted to intervene in the supplemental proceedings as authorized by the trial court. The Parks had no interest in the land when the condemnation action was filed. They are not contesting the title of any defendant alleged to have been the owner of any interest in land when the complaint was filed and no question arises as to any alleged right of jury trial as to title to land. So far as the record shows, it does not appear that the plaintiff has entered into possession of the lands sought to be condemned or made any final election to take the property. ORS 366.385 and 366.390. If it has not, then the plaintiff State of Oregon could abandon the action and the petitioners Park would still have a lien against the land itself. Only if the *484 plaintiff-condemnor has unequivocally taken the land or shall take it, could the Parks have any claim against the fund in the possession of the court, and the question then would involve the priority of various claimants. It would also involve consideration of the alleged fact that the Parks have a lien under their attachment upon other land of Superbilt not included in the condemnation. Under the specific facts of this case we do not think that the court had any duty to allow the Parks to intervene in the law action instituted for the determination of the just compensation which should be allowed for the taking. Their rights, if any, are to receive out of the lump-sum award such sum as they may be entitled to in the order of priority, which may be determined as between them and the other lien claimants and owners, and, in view of the fact that they have other security not included in the condemnation proceedings.
The facts present a typical case for determination on equitable principles but they present no case for intervention in a law action for condemnation. The order of the court denying leave to intervene did not finally determine the rights of the petitioners. It only provided, in harmony with State v. Burk, supra, that their rights could be adequately protected in the supplemental proceedings after the total compensation has been awarded and the court has reached the point at which the condemnation has either been completed or abandoned, and if completed, at which the court assumes equitable jurisdiction.
The following authorities support our conclusion that the order denying the motion to intervene was not appealable: In A.J. Straus Paying Agency, Inc. v. Caswell Building Co., 227 Wis 353, 277 NW 648, a *485 bondholder sought to intervene in a suit brought by trustees to foreclose a mortgage securing the bond issue. The trial court had denied the right to intervene without prejudice to any right to file a petition at a later time. The petitioner appealed. The court held that since the order of the court denying the petition for intervention preserved to the petitioner the right to intervene at a later time it was obviously not a final order from which an appeal could be taken. An order is not final unless it precludes a future determination of the issues presented. Where the way is left open for investigation and determination of the merits presented by the application, it is not a final order determining the case or authorizing an appeal. The court stated:
See also First National Bank of Glens Falls, N.Y. v. Parks, 245 App Div 776, 280 NYS 805, appeal dismissed, 270 NY 506, 200 NE 292.
The Oregon statute quoted supra states the conditions under which an order may be considered appealable. First, the order must affect a substantial right, and second, the order must determine the action, and, in so doing, prevent a judgment or decree therein. ORS 19.010(2). The order in the case at bar does not come within the first condition, for no substantial right of the petitioners was affected by the order. *486 The order cannot have the effect of discharging or impairing in any way the lien of the petitioners on the land subject to condemnation, nor does the order impede the petitioners in the satisfaction of their lien. The order had the effect of prescribing an orderly procedure for the litigation of the issues involved. It affected procedural rights only, not substantive rights.
The interest of the petitioner had not attached at the time of the commencement of the condemnation action and he cannot be heard with respect to the amount of just compensation. The value of the land is determined as of the date the action was commenced, and the lien claimant did not have any interest at that time. He need not be heard on that question and has not sought to be heard thereon.
The rule adopted in State of Oregon, by Highway Commission v. Burk et al., supra, and applied in the pending case, is the logical outgrowth of the interesting decision in State v. Fitzgerald, 154 Or 182, 58 P2d 508. We observed that the application to intervene was made "before trial" of the condemnation action in the pending case, but we think that the essential thing is that the application be made before trial in the equitable proceeding for distribution of the fund which is the only trial in which the intervenors claim any rights.
3. The order denying the petition to intervene was not a final order and was not appealable. The motion to dismiss the appeal is allowed without prejudice to the future assertion by the petitioners of their rights in accordance with the order of the trial court. | 65a2ba82be82e6ced1e70b5c51a802660009f56e976b323c70a492bef26f8ef1 | 1954-02-17T00:00:00Z |
b5f28dd7-7227-4b73-bd6f-6c34a46d584e | Sheridan v. Pac. Tel. and Tel. Co. | 200 Or. 636, 267 P.2d 1104 | null | oregon | Oregon Supreme Court | Affirmed March 17, 1954.
Alton John Bassett, of Portland, argued the cause and filed briefs for appellant.
Cleveland C. Cory, of Portland, argued the cause and filed a brief for respondent.
Before WARNER, Acting Chief Justice, and LUSK, BRAND and PERRY, Justices.
AFFIRMED.
PER CURIAM.
This is an action for damages predicated upon the defendant's failure to print correctly in plaintiff's advertisement appearing in the classified section of *637 defendant's telephone directory the telephone number of her place of business. We are not supplied with a bill of exceptions. Depending solely upon defendant's brief, we find that the only error disclosed therein arises out of an alleged instruction which plaintiff says had the effect of limiting defendant's liability under the advertising contract to the cost thereof. On an annual basis this would be $87. The jury returned a verdict in favor of plaintiff in that amount. From the ensuing judgment, plaintiff appeals.
In the absence of a bill of exceptions, our consideration must be confined to the sufficiency of the pleadings, the findings of the trial court or to whether the pleadings or findings support the judgment. Boice v. Boice, 196 Or 346, 248 P2d 1069; La Grande Air Service v. Tyler et al., 193 Or 329, 330, 237 P2d 503, and cases there cited. Since the record is sufficient in this limited area of inquiry, the judgment is affirmed. | 1269e6d3e4faffb8350f1f3f2baa8d08c111b3f18a35daab37949453c204fec1 | 1954-03-17T00:00:00Z |
c9458af4-aca6-4b0b-b04e-7efe907ddbc3 | Andrews v. City of Corvallis | 200 Or. 632, 268 P.2d 361 | null | oregon | Oregon Supreme Court | Affirmed March 17, 1954.
F. Ernest Ayers, of Corvallis, argued the cause and filed a brief for appellant.
Richard Mengler, of Corvallis, argued the cause and filed a brief for respondent.
Before LATOURETTE, Chief Justice, and WARNER, ROSSMAN and PERRY, Justices.
AFFIRMED.
PERRY, J.
The appellant Adelbert Bradford Andrews, hereinafter called the plaintiff, was convicted of a misdemeanor *633 in the municipal court of the city of Corvallis, and, after sentence was passed, filed in the circuit court of the state of Oregon for Benton county a petition for a writ of review. The material part thereof necessary to this opinion and the decision of the circuit court reads as follows:
On this petition a writ was issued directed to the municipal judge of the city of Corvallis, and the defendant thereupon moved to quash the writ of review and simultaneously filed therewith its return to the writ. The motion to quash was sustained by the trial court, and from this ruling the plaintiff has appealed.
The sole question for determination in this court is whether or not the petition for writ of review is sufficient to authorize the issuance of the writ.
1. A petition for a writ of review must state facts sufficient to authorize the issuance of the writ. We can look only to the petition to ascertain the authority of the higher court to issue the writ, and reference to the return cannot be had to supply omissions of the petition. Southern Oregon Co. v. Coos County, 30 Or 250, 47 P 852.
In Southern Oregon Co. v. Coos County, supra, at page 257, we said:
2. It is readily seen that the petition for the writ of review set forth above states solely the conclusions of the petitioner. No facts are alleged.
The plaintiff's petition for the writ being insufficient to authorize the issuance of the writ by the trial court, the motion to quash was properly sustained.
The judgment of the trial court is affirmed. | 3df9e4cbb312bd818e377ecf9ecad54354314aa1f2d561745dcf217378a12a27 | 1954-03-17T00:00:00Z |
70439822-a39a-475a-9946-f4da6fed6eae | Larson v. Allen | 236 Or. 228, 388 P.2d 115 | null | oregon | Oregon Supreme Court | Affirmed December 31, 1963.
*229 Berkeley Lent, Portland, argued the cause for appellant. On the briefs were Peterson, Lent & Paulson, Portland.
Lamar Tooze, Jr., Portland, argued the cause for respondent. With him on the brief were Tooze, Powers, Kerr, Tooze & Morrell, Portland.
Before McALLISTER, Chief Justice, and PERRY, SLOAN, GOODWIN and LUSK, Justices.
AFFIRMED.
McALLISTER, C.J.
This is an action to recover damages for personal injuries resulting from the alleged negligence of defendant's decedent, Velma Rae Allen, hereinafter referred to as the defendant. In addition to a general denial, defendant as an affirmative defense pleaded the statute of limitations. By stipulation, the segregated issue of the statute of limitations was tried by the court without a jury. The court held that plaintiff's cause was barred and entered judgment for defendant. Plaintiff appeals.
*230 This action arose out of a collision that occurred on August 7, 1959 in Multnomah county between an automobile operated by plaintiff and one operated by defendant. When the accident occurred defendant resided in Hood River county, but in September 1959 she moved to Multnomah county, where she resided until her death in September 1962.
Plaintiff filed his complaint in the circuit court for Multnomah county on August 4, 1961. On the same day a summons was issued and delivered to the sheriff of Hood River county with the intent that it be served on defendant. Plaintiff and his attorneys were acting on the mistaken belief that Mrs. Allen still resided in Hood River county.
The sheriff of Hood River county returned the summons with a "not found" return dated August 9, 1961, which recited that the sheriff had been informed that the defendant resided in Portland. The plaintiff's attorneys thereafter on August 11, 1961 delivered another original summons to the sheriff of Multnomah county, who served the defendant in Multnomah county on August 14, 1961.
The sole question presented is whether plaintiff commenced his action within two years after his cause of action accrued. ORS 12.110.
1. In the usual case an action is deemed commenced when the complaint is filed and the summons is served on the defendant. ORS 12.020. In this case a summons was not served within two years of the accrual of the cause of action, and the decisive question is whether plaintiff's attempt to commence the action should be deemed "equivalent to the commencement thereof." The applicable statute provides:
2. The case turns on the construction of the phrase "usually or last resided." Plaintiff argues that the delivery of the summons for service to the sheriff of the county in which the defendant "last resided" within the actual knowledge of plaintiff and his attorneys was sufficient. We think the statute cannot be so construed.
3. We think that if the defendant resides in Oregon the summons must be delivered for service within the time limited by statute to the sheriff of the county in which defendant resides. It is only when the defendant no longer resides in Oregon that the summons may be delivered to the sheriff of the county in which the defendant "last resided." A similar statute in New York has been so construed. Kleila v. Miller, 1 App Div 2d 697, 147 NYS2d 589, 591 (1955); Guilford v. Brody, 237 App Div 726, 262 NYS 722, 724 (1933). See also Santaniello v. Levy, 23 Misc 2d 145, 201 NYS2d 309, 310 (1960). The plaintiff cites the Iowa case of Hampe v. Schaffer, 76 Iowa 563, 41 NW 315 (1889), but that case and the later case of Bracken v. *232 McAlvey, 83 Iowa 421, 49 NW 1022 (1891), are readily distinguishable.
We agree with the learned trial judge that the action was not commenced within the time limited, and the judgment of the court below is affirmed. | 46bb6d6509ca7dbb987609130c98680547ee3a098896bcfee5942b1bded533e5 | 1963-12-31T00:00:00Z |
477cbd63-6096-437b-a248-f9838ec683cb | Barbour v. Johnson | 201 Or. 375, 270 P.2d 633 | null | oregon | Oregon Supreme Court | Reversed April 7, 1954.
Rehearing denied and original opinion modified May 12, 1954.
Costs retaxed May 19, 1954.
*376 Grant T. Anderson, of Portland, argued the cause for appellants. With him on the briefs were King, Wood, Miller, Anderson & Nash, of Portland.
John Sabin, of Portland, argued the cause for respondents. On the brief were Wilbur, Mautz, Souther & Spaulding and Arno H. Denecke, of Portland.
*377 Before LATOURETTE, Chief Justice, and WARNER, TOOZE and PERRY, Justices.
REVERSED.
PERRY, J.
This is an action at law brought by the plaintiffs (who are painting contractors) against the defendants (who are partners in the business of constructing and erecting prefabricated houses) to recover the sum of $4,563.01, of which sum the defendants acknowledge $1,988.19 as due and owing to the plaintiffs. The balance of $2,574.82 claimed to be due by the plaintiffs is contested by the defendants. A jury was waived and the cause tried to the court, and from an adverse decision the defendants appeal.
The defendants assign error in the trial court's admission of certain documents and in failing and refusing to make certain requested findings submitted by the defendants; also, in failing to sustain their objection to a finding of fact to the effect that the amount found due, $4,563.01, or $2,574.82 in excess of the $1,988.19 admitted by the defendants to be due, was for work and labor done at the special instance and request of the defendants.
The facts of the case appear as follows: That sometime in April, 1948, a Mr. Locke, employed by the plaintiffs, contacted Mr. Dahl, one of the defendants and a partner in the firm of Johnson & Associates, relative to obtaining a painting contract on some 13 houses which were to be erected by the defendants at Gilchrist, Oregon; this resulted in the defendants employing the plaintiffs to paint the houses, and was evidenced by a letter from A.H. Barbour & Son to *378 the defendants, the terms of which were by them accepted, the letter being as follows:
Gentlemen:
The record shows that this was the first business transaction had between the plaintiffs and the defendants. The defendants claimed that the stipple paint to be used in these buildings was a special paint purchased by the defendants, which when used correctly would properly cover the walls in one coat and was of such heavy texture that it would not be necessary to plaster or fill in joints in the woodwork. This claim is disputed by the plaintiffs.
Prior to the writing of the letter from the plaintiffs to the defendants setting forth the agreement of the parties, Mr. Locke, the representative of the plaintiffs, went to the place of business of the defendants and there examined a portion of the panels for the prefabricated houses that were to be painted. Mr. Locke testified that the following took place at that time:
Some of the panels for the houses at that time were primed, others were not. After the houses had been erected on the site at Gilchrist, Mr. Scruggs, the foreman on this particular work for A.H. Barbour & Son, discussed the matter of priming the interior walls on the houses not already primed with Mr. L.A. Rowland, a foreman on the job for the defendants. Mr. Rowland said that he wanted the houses primed, and he then signed a special request presented by Scruggs for this work to be done. This work was done, which constituted the main portion of the additional claim of $2,574.82, a small portion of the claim being for closing seams with a plaster-like material called "sprackle", and the order for this, like the order for the additional painting, all arose in the same manner with defendants' foreman, Rowland.
Other orders for painting, in addition to that set forth in the contract, were on written order of the defendant R.E. Dahl as purchasing agent.
*382 With reference to Mr. Rowland's connections with the defendants (most favorable to the plaintiffs), the defendant Mr. Dahl testified as follows:
1. As the basis of the defendants' contention that the court erred in failing to sustain their objection to the special finding of fact that this extra work was *383 done at their special instance and request, the defendants must rely upon the proposition that there was insufficient evidence to authorize this finding, this court being bound by the findings of fact of a trial court in a law case to the same extent as though the issues had been determined by a jury. Therefore, this matter rests upon the answer to the question: Does the record show that L.A. Rowland was the agent of the defendants with authority to bind the defendants in a modification of the previous agreement entered into between the two principals?
2-5. In Phez Co. v. Salem Fruit Union et al., 113 Or. 398, 429, 233 P 547, we stated:
*384 The above case sets out the principles of law which control the matter before us. A similar situation arose in the case of Graef v. Bowles et al., 119 Or 498, 248 P 1090. In that case the plaintiff Graef entered into an agreement with the defendant, Bowles, and others, a partnership doing business as the Northwest Bridge & Iron Company, whereby he agreed to furnish labor and material for painting vessels constructed by the defendants for the agreed sum of $22,685 per boat. At that time it was the custom of the ship building plants generally to require workmen employed to work only eight hours per day for a five and one-half day week, and that for all work on any day over eight hours or for work on Saturday afternoon or any time on Sunday double the ordinary wages were paid. The parties mutually understood that only a single shift of men was to be employed in accordance with the custom. Subsequently the superintendent in charge of the work for the defendants notified the plaintiff that it was necessary to speed up the work on two of the boats, and in reference to this work the plaintiff testified that to do this it would require a lot more expense for over-time. The superintendent advised him to go ahead and employ the additional labor for over-time and he would o.k. it at the proper time. No direct transaction with reference to additional payment for the result contracted for was had between Graef and any members of the partnership. With reference to that transaction, and in holding that Graef could not recover from the partnership, this court on page 508 of the opinion said:
And the same is true of the transaction here. Plaintiffs knew that a contract in writing of a specific amount per unit for painting had been entered into; that the conversations had between Mr. Dahl and the plaintiffs' agent Mr. Locke were merged in the written agreement; and that the foreman on the job, L.A. Rowland, was the "executor" and not the "author" of the contract.
The plaintiffs seek to avoid this result by contending that this work was to be completed in a very short period of time and that "an emergency or an extraordinary condition will enlarge an agent's authority". We are unable to discover any emergency or any extraordinary condition that would enlarge an agent's authority. The plaintiffs and the defendants both had their principal places of business in Portland, Oregon, and there were telephone connections between Gilchrist and Portland. But a few minutes would have been required to determine the agent's authority and to have prepared and received an authorization between the principals which would vary the terms of the original agreement. The case of Nicolai-Neppach Co. v. Abrams et al., 116 Or 424, 240 P 870, which is relied upon by the plaintiffs for this principle, presents far different facts.
There being no evidence to sustain the trial court's finding, we need not consider the other claims of alleged error made by the defendants.
The cause is reversed with instructions to enter judgment for the defendants.
*386 Mautz, Souther, Spaulding, Denecke & Kinsey and John R. Sabin, of Portland, for the petition.
King, Miller, Anderson, Nash & Yerke, of Portland, contra.
Before LATOURETTE, Chief Justice, and WARNER, TOOZE and PERRY, Justices.
PETITION DENIED. ORIGINAL OPINION MODIFIED.
PERRY, J.
The plaintiffs have petitioned this court for a rehearing in the above matter, stating, first, that "The Court erred in reversing the judgment of the trial Court with instructions to enter judgment for the defendants, for the reason that the amount of the judgment entered in the trial Court included the sum of $1,988.19, which sum was acknowledged by the defendants, in the pleadings, on the trial and on this appeal, and by the Court itself, to be owing to the plaintiffs"; and second, that "The Court erred in holding that there was no evidence to sustain the trial court's finding that the labor and materials in issue were furnished by the plaintiffs at the special instance and request of the defendants for the reason that there was substantial evidence to support the trial court's finding of fact."
In reversing the judgment with instructions to enter judgment for the defendants as to the item of the sum of $1,988.19 we acknowledge our error, and a judgment for the above sum should be entered by the trial court, but the balance of the claim of $4,563.01, *387 which contained that portion of the judgment appealed from, should be denied.
As to the second claimed error, the plaintiffs allege that there was evidence to sustain the trial court's finding that labor and materials in issue as to the balance of the judgment sought were furnished at the special instance and request of the defendants and that we overlooked and failed to consider the evidence introduced by the plaintiffs that the agent of the defendants, Rowland, had apparent authority to alter the contract previously entered into between the parties to include a two-coat painting job instead of the one-coat job provided in the contract.
6, 7. We stated in our original opinion that there was no evidence of Rowland's authority. Perhaps our opinion would have been more lucid had we used the words "apparent authority" for there was equally no evidence of actual authority. "Apparent authority" is the holding out of the agent to have certain authority and after a party dealing with the agent has relied upon this appearance of authority in theory an estoppel arises to deny the authority of the agent to do the particular act or acts in controversy. 2 Am Jur 86, Agency, § 104. The evidence relied upon by plaintiffs is to the effect that prior to entering into the written contract the defendants stated, in effect, that they would have a man on the job authorized to order a priming of any of the buildings that needed priming. There is not one bit of evidence that Rowland was to be the agent of the defendants for the purpose of altering the contract subsequently entered into. Apparent authority does not arise where the lack of the agent's authority is known, or should be known, to the party dealing with the agent. While this exact language is not used in our opinion, in Graef v. Bowles *388 et al., 119 Or 498, 248 P 1090, it is the rule of law there relied upon.
The petition for rehearing is denied, and our previous opinion adhered to, except as modified by entering judgment for the plaintiffs for the sum of $1,988.19, admitted by the defendants to be due the plaintiffs.
Mautz, Souther, Spaulding, Denecke & Kinsey, and Arno H. Denecke and John R. Sabin, of Portland, for the objections.
King, Miller, Anderson, Nash & Yerke, of Portland, contra.
Before LATOURETTE, Chief Justice, and WARNER, TOOZE and PERRY, Justices.
COST BILL RETAXED.
PER CURIAM.
The appellants include in their statement of costs and disbursements "Bond on appeal, $140.00" and "Renewal of bond on appeal, $140.00". The respondents object thereto as follows: "Appellants are not legally entitled to recover as costs on appeal the premium for undertaking on appeal, supersedeas or other".
8. Section 101-1402, OCLA, subd. 5, now ORS 747.100 (2), authorizes the recovery "of a sum paid * * * for executing any bond * * *. Such sum shall not exceed one percent of the amount of the bond * * * during each year the same was in force". The supersedeas bond filed in this case, and running for a period of more than one year, secured a contingent liability thereunder of approximately $6,000. *389 One percent thereon for a period of two years, as allowable under this statute, would permit a recovery in the sum of $120. Gray v. Hammond Lumber Co. et al., 113 Or 570, 594, 232 P 637, 233 P 561, 234 P 261.
The respondents also object to the amounts set forth as disbursements relative to the printing of the abstract of record, printing of appellants' brief and reply brief.
The amount allowable for printing is $2 per page, including the cover. Rule 19, § 2, Rules of the Supreme Court.
The costs are retaxed and allowed to the appellants as follows: | a15b17c115ac4dedc34a9475a38200c89b7f09043a9a6534ab243834395cde64 | 1954-05-19T00:00:00Z |
acc0ced7-38c3-4fe4-90bb-01f8c14c391c | Highway Comm. v. Pac. Shore Land Co. | 201 Or. 142, 269 P.2d 512 | null | oregon | Oregon Supreme Court | Affirmed April 14, 1954.
*144 Ralph Wyckoff, of Salem, argued the cause for appellant. With him on the brief were Robert Y. Thornton, Attorney General, of Salem; C.W. Enfield, Assistant Attorney General, of Salem; and Leonard I. Lindas, of Oregon City.
David M. Spiegel argued the cause for respondent. On the brief were Lenske, Spiegel, Spiegel, Martindale & Lezak, of Portland.
Before LATOURETTE, Chief Justice, and WARNER, TOOZE and PERRY, Justices.
AFFIRMED.
TOOZE, J.
This is a condemnation action brought by the state of Oregon through its Highway Commission, as plaintiff, against Pacific Shore Land Co., a corporation, Maurice Andersen, Edward Bennett, and Lincoln county, a political subdivision of the state of Oregon, as defendants, to condemn for highway purposes certain *145 lands owned by defendants in Lincoln county. All defendants, except defendant Pacific Shore Land Co., defaulted, their default being duly entered of record. Judgment was entered in favor of defendant Pacific Shore Land Co.; plaintiff appeals therefrom.
In its complaint plaintiff particularly described two parcels of land owned by defendant, designating them as Parcel No. 1 and Parcel No. 2, and prayed for the condemnation thereof. Upon a preliminary hearing before the court, at which evidence was introduced, the question of the necessity for the acquisition of Parcel No. 2 was considered, and under date of May 26, 1952, the court entered the following order:
Thereafter the trial proceeded before court and jury as to Parcel Number 1. Based upon the jury's verdict, judgment was entered in favor of defendant for the sum of $5,000, with interest, together with the additional sum of $1,000 as a reasonable attorney's fee, and costs and disbursements. By this final judgment, Parcel No. 1 was condemned, and plaintiff's complaint was dismissed as to Parcel No. 2.
On February 25, 1946, the Highway Commission adopted a resolution referring to 12 separate tracts *146 of land owned by the several persons particularly named therein. Designated among these tracts of land as Parcel No. 12 is the description of a single unit of land comprising 26.88 acres owned by defendant. The resolution specifically declared the necessity and purpose of the acquisition of defendant's land to be for "right of way" purposes in connection with the relocation of a portion of the Oregon coast highway in Lincoln county.
On March 23, 1946, the complaint in this action was filed, with the said resolution attached as an exhibit and made a part of the complaint. However, the land sought by the complaint consisted of two separate parcels of approximately 9 acres each, one particularly described and designated as Parcel No. 1, and the other described and designated as Parcel No. 2, as before noted. From the particular descriptions of these separate parcels, they may be identified as parts of the total acreage set forth in the resolution.
In its brief plaintiff states:
It should be stated that the hearing before the trial court upon the necessity and propriety of the acquisition of Parcel No. 2 was held pursuant to the agreement of the parties, and without intervention of a jury.
Before discussing the merits of this controversy, we will dispose of plaintiff's contention that defendant's answer fails to state facts sufficient to constitute a defense. Without going into details, we simply state *147 our conclusion that the answer contains denials and affirmative allegations which present issuable facts; the affirmative allegations are much more than mere conclusions. They are sufficient to present the legal and factual questions that must be determined in this case. Our conclusion does not in any way conflict with the well-reasoned opinion in City of Eugene v. Johnson, 183 Or 421, 192 P2d 251. We pass this contention of plaintiff without further comment.
As point II under its assignment of error that the trial court erred in dismissing a portion of plaintiff's complaint, plaintiff states:
This contention requires an examination of the record in the case. Upon the hearing before the trial court, the resolution adopted by the Highway Commission was first offered in evidence. The parts of that resolution which are material to our discussion are:
Plaintiff also introduced in evidence a highway map drawn to scale and covering the lands owned by defendant. This is an official map prepared for the Highway Commission. The "right of way" for the Oregon coast highway is clearly outlined on the map, the center line being delineated, and the land on each side thereof within the right of way being plainly marked. The map also designates the land owned by defendant and within the right of way as "Parcel No. 1 8.95 ac." It further shows the location of Parcel No. 2 8.70 acres. On the east, Parcel No. 2 adjoins the west boundary line of the marked right of way, but it is not within the right of way.
Defendant introduced in evidence another highway map procured from the Highway Commission, which latter map covered the same lands shown in the other map above described. This map also contains the designations "Parcel 1 8.95 ac. and Parcel 2 8.70 ac." However, on that part of the map showing Parcel 2 appears the following statement: "Parking and Picnic Area."
Plaintiff called B.A. Martin, assistant chief locating engineer of the Highway Commission, as a witness. *149 Martin had run a preliminary line for this highway in 1936, but he had nothing whatever to do with the final laying out and construction of the road. Over objection, the witness was permitted to testify on direct examination as follows:
Upon cross-examination, the witness testified:
The effect of Martin's testimony is to establish the proposition that Parcel No. 2 was not necessary, and was not to be used, as a part of the right of way for the highway, but was only necessary and to be used for drainage purposes. The evidence disclosed that but little use was actually being made of it, even for drainage purposes.
Based upon the foregoing record, the trial court reached the conclusion hereinbefore stated.
The Oregon State Highway Commission is a quasipublic corporation, an agency of the state. It was created by the legislature to carry out purely state functions; that is, the location, relocation, construction, maintenance, and repair of state highways and bridges. §§ 100-101 to 100-1104, incl., OCLA (ORS Title 31, ch 366).
The Highway Commission is vested with broad powers. As to its specific powers, § 100-115, OCLA, provides in part, as follows:
By the provisions of § 100-115e, OCLA, the Commission is given power to construct trails and bridle *152 paths connecting legally established streets and roads and public parks with the shore of the Pacific ocean, and to acquire the necessary real property therefor by the exercise of the power of eminent domain. Under the provisions of § 100-115g, OCLA, the Commission is further empowered to construct sidewalks, footpaths, bicycle paths or trails for horseback riding "within the right of way of any state highway or section thereof". The statute specifically provides that before the construction of any of said facilities, the Commission must find and declare that the construction thereof is necessary and in the public interest.
It will be observed that in the enumeration of the specific powers granted the Commission under § 100-115, OCLA, and its separate subdivisions as noted, the several purposes, to accomplish which the power is granted, are treated separately as distinct objectives. The Commission is given the power (among other specific powers) to acquire land for (1) rights of way; (2) for highway drainage and drainage tunnels; and (3) for trails, bridle paths, etc.
1-3. From a consideration of the statute as a whole, it is manifest that the term "right of way" as used is intended to have its usual and ordinary meaning. The term has a specific legal definition. At common law it was the defined passageway created by the easement right to pass over the land of another. In Black's Law Dictionary 4th ed, "Right of Way" is defined as follows:
*153 In Almada v. Superior Court, etc., 149 P2d 61, 64, it is said:
Ordinarily the right to travel across the lands of another is an easement only, title to the land itself remaining in the owner of the fee. However, under our statute, the Commission is empowered to acquire the fee simple title to the land necessary for the right of way, as well as for other purposes.
Under the statute, the power given the Commission to acquire real property for rights of way simply means the power to acquire the property deemed necessary for the construction of a highway for the use of vehicular and other travel. The width of the right of way to be acquired is not necessarily confined to the actual width of the traveled portion of the road constructed or to be constructed. Enough land for parallel shoulders, ditches, and anticipated needs of the future may be condemned as a part of such right of way. That clearly is the purpose of subd. 12 of § 100-115, OCLA, supra, which gives the Commission the power to determine the widths of "rights of way for any and all state highways". Along the stretch of highway involved in this litigation, the Commission fixed the width of the right of way at approximately *154 200 feet, although its map shows some variations in width at different points.
Authority to commence and prosecute an action for condemnation of necessary lands is given the Commission by § 100-116, OCLA, under conditions therein prescribed. The statute, in part, provides:
4, 5. In City of Eugene v. Johnson, supra, at page 426, Mr. Justice BAILEY, speaking for the court, said:
Also see 1 Nichols 373, Eminent Domain, § 4.11.
Insofar as the State Highway Commission is concerned, the rule above stated is given added force by the express provisions of § 100-116, OCLA, supra.
6. In Dallas v. Hallock, 44 Or. 246, 252, 75 P 204, Mr. Justice WOLVERTON stated:
Substantially the same statement is to be found in State ex rel. v. Hawk et al., 105 Or 319, 208 P 709. However, the introduction in evidence of the resolution as adopted establishes a prima facie case of the necessity for taking an entire tract. City of Eugene v. Johnson, supra. In the instant litigation plaintiff did not rest upon the prima facie case established by the resolution. It offered other evidence (defendant offered none) that obviously contradicted and overcame the declaration of the resolution that all the land described as owned by defendant was necessary for "right of way" purposes.
7. In City of Eugene v. Johnson, supra, at page 428, the following rule is announced:
That rule was followed in the instant case.
8. As above noted, City of Eugene v. Johnson, supra, lays down the definite rule that the courts may inquire into the determination of the grantee of the power of eminent domain if there has been an abuse of discretion. And so in this case, if there has been an abuse of discretion on the part of the Highway Commission, we not only have the authority, but it also is our duty, so to declare. No question of wrongful intent or fraud on the part of the Commission is involved. This court has had occasion to fully consider what is meant by "discretion" and "abuse of discretion". Casciato v. Oregon Liquor Control Com., 181 Or 707, 715, 185 P2d 246. We need not repeat that discussion.
9. From the plain wording of the first paragraph of § 100-116, OCLA, supra, under which condemnation proceedings are provided for, it is manifest that a condition precedent to the vesting and exercise of such authority is the adoption by the Highway Commission of a resolution declaring not only the necessity for the appropriation, but also the purpose for which the land is to be acquired. Declaring the purpose is of equal importance to declaring the necessity.
10, 11. The State Highway Commission is a creature of statutory origin; it has only such special and limited powers as are given it by the statute. In United Contracting Co. v. Duby, 134 Or 1, 29, 292 P 309, Mr. Justice ROSSMAN, speaking for the court, said:
In 2 Lewis 917, Eminent Domain 3d ed, § 508, it is stated:
From 18 Am Jur 957, Eminent Domain, § 312, we quote the following:
Also see 29 CJS 880, Eminent Domain, § 89.
In Latourette v. County Court, 121 Or 323, 330, 255 P 330, we said:
As we have seen, it is mandatory under the statute that the resolution adopted by the Highway Commission state the purpose for which the land is to be acquired. That is one of the conditions of its right to condemn.
12. The resolution, adopted approximately one month prior to the commencement of this condemnation proceeding, declares that 26.88 acres of defendant's property is being acquired for "right of way purposes". In the complaint approximately 19 acres only of the 26.88 acres are described. In other words condemnation and appropriation are not sought as to approximately 8 acres of the total acreage described in the resolution. It is assumed, therefore, that this tract of 8 acres was not necessary for "right of way purposes", although the resolution declared that it was.
Moreover, on its map and in its complaint, the plaintiff designated and treated the remaining 19 acres as comprising two separate and distinct tracts of land not as a single tract. As before observed, Tract No. 1, as so designated, constitutes the land used for "right of way purposes". Tract No. 2 lies entirely outside the "right of way", although adjacent thereto. The evidence introduced by plaintiff shows conclusively *159 that Tract No. 2 is not necessary for "right of way purposes", though it might have been necessary for "drainage purposes", or for "parks, parking places, auto camps, camp sites, roadside development, recreational grounds", etc. The land in question lies between the highway and the shores of the Pacific ocean.
The resolution itself recognizes the necessity of stating the particular purpose for which the land is actually to be acquired. We refer to the third property described in the resolution, owned by William Bohn and wife. The particular purpose specified for which that tract of land was to be acquired is "securing roadbuilding materials therefrom", also a separate and distinct purpose set forth in the statute for which land might be condemned by plaintiff.
Because Tract No. 2 is not embraced within the right of way as established by plaintiff, and upon which the highway was constructed, it follows that the resolution does not in fact declare for what purpose or necessity, if any, it is being acquired. It it manifest that use of land for "drainage purposes" is not use for "right of way purposes"; neither is use for "parking and picnic purposes" a use for "right of way purposes". These latter uses are distinct uses, and are so treated in the statute under which plaintiff claims its authority in this proceeding. If plaintiff deemed it necessary to acquire Parcel No. 2 for "drainage", "parking", or "picnic" purposes, the statute required as a condition of its right to condemn that it so declare such specific purpose by its resolution.
Plaintiff had no authority under its resolution that specified "right of way purposes" as the sole objective for the acquisition, to proceed by condemnation action for the condemnation and appropriation of a tract of land that it may have deemed necessary for other *160 and undisclosed purposes, and which the evidence shows to be unnecessary and not used as a part of the right of way. Its attempt so to do in this case was an abuse of discretion vested in it by the statute, and is subject to review and correction by the court.
The trial court properly heard and determined the question of necessity and the authority of the plaintiff as a preliminary matter prior to the impaneling of the jury. City of Eugene v. Johnson, supra.
The judgment is affirmed. | f27ea8c666c56c64a8f3b1732fdd1eff83ace757c71814395da3a5f672a151eb | 1954-04-14T00:00:00Z |
b3f09aad-d6ff-4a37-8e54-ec94c054539b | Allen v. State Ind. Acc. Com. | 200 Or. 521, 265 P.2d 1086 | null | oregon | Oregon Supreme Court | Reargued January 6, 1954.
Reversed January 27, 1954.
Petition for rehearing denied February 24, 1954.
*522 Ray H. Lafky, Assistant Attorney General, of Salem, argued the cause for appellant. With him on the briefs were Robert Y. Thornton, Attorney General, Roy K. Terry, Vernon D. Gleaves and Don Parker, of Salem, and T. Walter Gillard, of Portland, Assistant Attorneys General.
James F. Bodie, of Prineville, argued the cause for respondent. With him on the brief was Loren D. Hicks, of Turner.
REVERSED.
LUSK, J.
Pauline R. Allen, widow of Carl Dean Allen, brought this action to recover benefits under the Workmen's Compensation Law on account of the accidental death of her husband. The plaintiff's claim was rejected by the defendant, State Industrial Accident Commission, on the ground that the decedent, an officer of a corporation subject to the Act, had not filed a personal notice of election to become entitled to the benefits of the Act *523 as required by OCLA § 102-1732 (ORS § 656.128). Thereupon the widow appealed by filing an action in the circuit court pursuant to statute. The defendant filed a demurrer to the second amended complaint, which was overruled by the court. The defendant refused to plead further, and judgment was entered for the plaintiff from which this appeal is taken. The sole questions are upon the construction of the statute above referred to and a claim of estoppel.
The second amended complaint alleges in substance the following facts: The decedent, Carl Dean Allen, was president of Gilbert & Allen Flowers, Inc., a corporation, and owner of half of its capital stock. As president of the corporation he received no remuneration, and as stockholder had never received any dividends. He was employed by the corporation pursuant to action taken at the first meeting of the stockholders and directors at a salary of $350.00 per month to perform the following duties: Have charge of all designing, retail flower sales, and the buying of all supplies in connection with these duties. In addition he did manual labor about the corporation's shop in Prineville, Oregon. The corporation had elected to become subject to the Workmen's Compensation Law for a nonhazardous occupation pursuant to OCLA § 102-1716, as amended (ORS 656.034, 656.036), and was so subject at the time of the death of Carl Dean Allen. It made the contributions to the accident fund on account of Allen and its other employees required by the commission pursuant to law. Each of the employees, including Allen, likewise made contributions to the fund as required by law.
On June 8, 1951, Allen sustained an accidental injury arising out of and in the course of his employment *524 while he was engaged in decorating a float with flowers for the Portland Rose Festival parade. The injury was cause by his inhaling poisonous fumes from the carbon tetrachloride solution of a spray used on the flowers, and as a result he died on June 12, 1951.
The plaintiff pleads an estoppel, which in substance is as follows: On or about April 1, 1952, G.M. DeBroekert, an agent of the State Industrial Accident Commission, informed Burr and Putnam, public accountants, who kept the books and made the reports for Gilbert & Allen Flowers, Inc., that the law required that corporate officers file an election to become subject to the Act; but that it was the policy of the commission to provide coverage for corporate officers of small corporations such as Gilbert & Allen Flowers, Inc., up to the time of the first audit, even though no such election had been filed, provided the required contributions to the accident fund had been paid. DeBroekert also exhibited to the accountants a letter from the commission instructing the agent that no refunds of contributions would be granted to the corporation, based on a claim that such officers were not covered by reason of failure to file an election, since it was the policy of the commission to consider such officers covered until the time of the first audit if the requisite contributions had been made. The plaintiff, the corporation, and the decedent relied on these representations, and the corporation and the decedent, in reliance thereon, continued to make contributions to the fund, and but for such representations the decedent would have filed his election at once to become entitled to the benefits of the Act.
The grounds of the demurrer were that plaintiff had "failed to set forth that her deceased husband was, at *525 the time of his death, a workman as defined by the Workmen's Compensation Law", and that her complaint fails "to show that deceased husband of plaintiff complied with the provisions of Sec. 102-1732, O.C.L.A."
1, 2. It appears from the allegations of the second amended complaint that the deceased never filed an election to become entitled as a workman to the benefits of the Workmen's Compensation Law, and in our opinion the circuit court's ruling upon the demurrer was erroneous.
OCLA § 102-1732 (ORS 656.128), as amended by Oregon Laws 1947, ch 8, provides:
OCLA § 102-1703 (ORS 656.002, 656.124) provides in part:
3. OCLA § 102-1732, as amended, applies to "any person who is an individual employer, or a member of a firm, or an officer of a corporation, subject to this act as an employer". It provides in substance that such person may, by complying with the provisions of the section, become entitled to the benefits of the Workmen's Compensation Act "as a workman". The final sentence of the section reads:
The sentence is unambiguous. It applies to any officer of any corporation subject to the Act. The plaintiff would introduce into it an exception, that is, an officer of a corporation who is a workman within the definition given in OCLA § 102-1703. The provision contains no such exception, and, were we to yield to plaintiff's contention, we would not have construed the statute but in effect would have rewritten it. Our duty to construe the Workmen's Compensation Act liberally does not include the authority to alter it.
We think that the reason for the last provision, applicable only to an officer of a corporation, is this: An officer of a corporation, but for this provision, could also be a workman of such corporation as defined by OCLA § 102-1703 and entitled to the benefits of the Act. He could be "a person who shall engage to furnish his or her services, subject to the direction and control of an employer", because the officer and his corporation are separate legal entities. But this is not true of the other classes of persons included in the section. *528 One cannot be his own employee, whether he be an individual employer or a member of a partnership. 1 Larson, Workmen's Compensation Law 791 § 54.31. But, by complying with the provisions of the section, he may become a workman for the purposes of the Workmen's Compensation Act and entitled to its benefits. It was not, therefore, necessary to provide that an employer or a partner should not be deemed a workman unless he complies with the section, for he could not become a workman entitled to the benefits of the Act in any other way.
But since, as we have stated, an officer of a corporation may also be a workman, as that term is defined in the Act, and as such workman would be entitled to the benefits of the Act but for § 102-1732, as amended, the legislature, for reasons which it evidently considered sufficient, expressly provided that an officer of a corporation should not be deemed a workman of such corporation unless he complied with the section. The purpose to exclude such a person from the definition of workman in § 102-1703 and to make his status as workman dependent upon such compliance is clear. The decedent did not so comply and his widow, therefore, has no claim against the accident fund.
The only case in which this court has heretofore considered the construction of the statute is Carson v. State Industrial Accident Commission, 152 Or 455, 54 P2d 109. It was there decided that an employee of a corporation, who consented to become a director in order that the legal organization of the corporation might be effectuated, who owned no stock although one share was issued but never delivered to him, who was elected secretary but had no voice in determining the policy of the company, and was, as the court said "a *529 dummy director", was not as a matter of law an officer of the corporation within the meaning of the statute. A judgment for the commission, based upon a directed verdict, was reversed. The court, in an opinion by Mr. Justice BELT, called attention to the so-called "dual capacity" rule under which the courts have held, in the absence of a controlling statute, that an officer of a corporation will not be denied compensation if he is in fact also an employee engaged in performing the ordinary duties of a workman at the time of the injury. The decision was not based upon these cases in view of our statute, but proceeds upon the assumption that the plaintiff's failure to comply with the statute would be a bar to his action were he an officer of the corporation within the intendment of the statute. This was held to be a question of fact, and the cause was remanded for further proceedings. The clear implication of the decision is opposed to plaintiff's contention.
Counsel for plaintiff, who both in their brief and in argument have presented their contentions with ability and thoroughness, rely on Millers' Mut. Casualty Co. v. Hoover, (Tex Civ App) 216 SW 475, affirmed 235 SW 863, in which a statute similar in terms to the last sentence of § 102-1732, as amended, was interpreted as not applicable to corporate officers who perform duties for the corporation such as to bring them within the statutory definition of "employee". But the Texas statute contains no requirement of personal election by the officers to become subject to the Act, and for that reason, regardless of the correctness of the decision, we think that the case is not in point.
In our judgment no officer of a corporation can become entitled to the benefits of the Workmen's Compensation Law unless he complies with the statute in question.
*530 4, 5. As to the plea of estoppel, this court has held in unmistakable terms that the industrial accident fund is a trust fund, and that the state cannot be estopped by the unauthorized acts of its officers charged with administration of the fund. In Rohde v. State Industrial Accident Commission, 108 Or 426, 217 P 627, the court, speaking through Mr. Justice BURNETT, said with reference to statutes of other states which had been called to the attention of the court:
Again it was said:
In Smith v. State Industrial Accident Commission, 144 Or 480, 483, 23 P2d 904, 25 P2d 1119, Justice RAND said for the court:
The doctrine of these cases was again approved as recently as Harris v. State Industrial Accident Commission, 191 Or 254, 273, 230 P2d 175. The rule is a salutary one, and, regardless of decisions to the contrary in other jurisdictions, should not be repudiated or watered down by introducing exceptions which in the end would destroy it. Its application in a particular case, as possibly in this one, may result in hardship. But we are not, for that reason, at liberty to adopt a different rule which could lead to unauthorized and unlawful diversions of the state industrial accident fund.
It results that the judgment must be reversed and judgment entered for the defendant.
WARNER, J., dissenting.
I am of the opinion that the overall purpose of § 102-1732, OCLA (ORS 656.128) is to enable employers and officers of corporations who are not workmen *532 in fact to enjoy the beneficent privileges of the compensation law and that a corporation officer who has already achieved the status of a workman in fact does not need to qualify further under the provisions of that section as a "deemed workman".
In the instant matter the record reveals that Carl D. Allen, the decedent, had been regularly retained as a workman at a stipulated salary of $350 per month to perform services that were not incident but foreign to his work as a corporation officer. Payments had been made to the Commission predicated upon this workman relationship. We also learn from the record that his duties as a vice president and later as president of the corporation took less than one per cent of his time and that the rest of his time was employed as a workman in fact, hired by and subject to the direction and control of the corporation.
To require him to make a further application to come under the Workmen's Compensation Law would have been a vain gesture, accomplishing no more than previously done. To now deny its benefits to his dependents would, in my opinion, be a perversion of the clear legislative intent and would work a cruel and unjust hardship. It tends to the absurd to say that one who has previously qualified as a "workman" in fact should thereafter be required to implement procedures to be "deemed a workman".
ROSSMAN and TOOZE, JJ., join in this dissent. | a517393a104d8c9b98ad4cda8e4fb6d7d7d98e4a4a07780696ad994e1856abaf | 1954-01-27T00:00:00Z |
b6404dd3-b6a4-463a-89c3-9e3fb2a001e2 | State v. Milligan | 304 Or. 659, 748 P.2d 130 | null | oregon | Oregon Supreme Court | 748 P.2d 130 (1988)
304 Or. 659
STATE of Oregon, Respondent On Review,
v.
Lawrence Bradley MILLIGAN, Petitioner On Review.
TC CR 83-775; CA A36635; SC S33581; SC S33944.
Supreme Court of Oregon, In Banc.
Argued and Submitted October 6, 1987.
Decided January 6, 1988.
*131 John Henry Hingson, III, Oregon City, argued the cause and filed the petitions on behalf of the petitioner on review.
Jonathan H. Fussner, Asst. Atty. Gen., argued the cause on behalf of the respondent on review.
GILLETTE, Justice.
This is a prosecution for criminally negligent homicide. We are called upon to determine the admissibility of blood samples extracted from a person suspected of committing a criminal offense relating to the consumption of alcohol, when the officer who requests the samples has neither a warrant nor the suspect's consent. In this case, two samples were drawn at an officer's behest, approximately one hour apart, and tested for alcohol content. Defendant moved to suppress the chemical analyses of the samples. The trial court denied defendant's motion, and he was convicted. The Court of Appeals affirmed. State v. Milligan, 84 Or. App. 743, 735 P.2d 375 (1987). We also affirm.
Defendant drove a car into a power pole, killing his passenger. A witness at the scene of the accident, Todd Freeman, told the investigating officers that he, defendant *132 and the deceased had been drinking together before the accident and that defendant and the deceased had six drinks each and were "smashed." Freeman, who had been following defendant in a second car, told the officers that defendant had been driving up to 90-95 miles per hour. The posted speed immediately before the accident was 25 miles per hour. A second witness, Tracy Marsh, arrived at the scene shortly after the crash. She told the officers that, immediately before the accident, she had seen two sets of headlights traveling at a high rate of speed past her.
Defendant was conscious. Officer Wilkerson detected a distinct odor of alcohol on his breath. (Officer Davis, who also was present, later testified that he noticed no sign that defendant was intoxicated.) At Wilkerson's direction, Davis transported defendant to the hospital, where he obtained the two samples of defendant's blood without defendant's consent. The second blood sample was drawn just over an hour after the first sample. Defendant was told that he had no choice but to accompany Davis to the hospital and to submit to the blood tests.
Defendant subsequently was charged with manslaughter in the first degree. ORS 163.118. He filed a pretrial motion to suppress the results of his blood test on the grounds, inter alia, that the police lacked probable cause to believe that he was driving while intoxicated, that he must be but was not under a valid arrest when the blood samples were drawn without his consent, that the police lacked statutory authority to require him to submit to the blood tests and that a search warrant was required before the police could test the blood alcohol content of the samples. The motion was denied. The blood test results were admitted at defendant's trial, and he was convicted of criminally negligent homicide, a lesser included offense of the manslaughter charge. ORS 163.145.
The Court of Appeals initially reversed and remanded for a new trial holding that, under State v. Langevin, 78 Or. App. 311, 715 P.2d 1355 (1986), the police were required to obtain a search warrant or to establish that exigent circumstances existed before testing defendant's blood samples for their alcohol content. In Langevin, the court had relied on its previous interpretation of Article I, section 9, of the Oregon Constitution in State v. Westlund, 75 Or. App. 43, 705 P.2d 208 (1985).
This court subsequently reversed the Court of Appeals' decision in Westlund. State v. Westlund, 302 Or. 225, 729 P.2d 541 (1986). We also reversed and remanded State v. Langevin for reconsideration in light of State v. Westlund, supra, and State v. Owens, 302 Or. 196, 729 P.2d 524 (1986). On remand, the Court of Appeals affirmed the defendant's conviction in Langevin. State v. Langevin, 84 Or. App. 376, 733 P.2d 1383 (1987). The state petitioned the Court of Appeals for reconsideration of the present case in light of this court's reversal in Langevin. That court granted the state's petition and affirmed defendant's conviction. State v. Milligan, supra. We allowed defendant's petitions for review to determine the circumstances under which the police may obtain blood samples, without a warrant or consent, from a person suspected of committing an alcohol-related crime.
Defendant invokes Oregon statutory law, the Oregon Constitution and the federal constitution in support of his contention that the blood samples should have been excluded. His primary objection is based on the theory that he was not under arrest when the blood samples were drawn.[1] That argument is premised on *133 the assumption that an arrest is a necessary prerequisite to the warrantless extraction of a blood sample based on probable cause. For the reasons that follow, we hold that the existence of an arrest is not relevant to an analysis of the permissibility of the warrantless extraction of a blood sample under Oregon statutes or either the state or the federal constitution.[2]
We turn first to the question whether Oregon statutory law authorizes the police to obtain a blood sample from a person suspected of an alcohol-related crime, without first arresting that person. The only Oregon statute that directly addresses police authority to obtain blood samples is found in the Implied Consent Law, ORS 813.100 .320. Under ORS 813.140, a police officer is granted authority to obtain a chemical test of a suspect's blood for its alcohol content under the following circumstances:
In this case, defendant was not unconscious or otherwise incapable of consenting to the blood test. The extraction and seizure of blood in this case therefore did not comply with the statute. Reading the statute by itself, one could fairly conclude that its provisions "occupy the field" and, therefore, the police either must obtain a sample in compliance with ORS 813.140, or the sample taken and any tests derived from it are not admissible.
However, the statute cannot be read alone. ORS 813.320 provides:
Because the present case is not a prosecution for driving under the influence of intoxicants, ORS 813.140 does not require exclusion of the blood tests, even though they were not obtained according to the procedures set out in that provision. Thus, although there is no affirmative authorization of the procedure followed here, there is a legislative direction that the results of such procedure shall be admissible, assuming the results are relevant and competent. We therefore hold that defendant's statutory argument is not well taken.
We turn now to an examination of whether the manner of taking the blood samples in this case complied with state and federal constitutional requirements. The extraction of a blood sample by the police is both a search of the person and a seizure of an "effect" the person's blood. Thus, the extraction implicates constitutional guarantees against unreasonable searches and seizures in Article I, section 9, of the Oregon Constitution, and the Fourth and Fourteenth Amendments to the United States Constitution.[3]Schmerber *134 v. California, 384 U.S. 757, 767, 86 S. Ct. 1826, 1833, 16 L. Ed. 2d 908 (1966); see also State v. Heintz, 286 Or. 239, 594 P.2d 385 (1979).
Defendant first argues that the police did not have probable cause to believe that an analysis of his blood would yield evidence that he had committed an alcohol-related crime. We disagree. The circumstances surrounding the accident, the odor of alcohol on defendant's breath and Freeman's statement that defendant had been drinking heavily were sufficient to establish probable cause.
The remaining question is whether the police were required to obtain a warrant before requesting hospital personnel to draw samples of defendant's blood. Defendant argues that the extraction of blood in this case cannot be justified either as a search incident to a lawful arrest or as a warrantless search and seizure justified by exigent circumstances.
We think defendant's argument about arrest misses the point, at least under the Oregon Constitution. Whether or not defendant had been "arrested" by the officer who accompanied him to the hospital, he certainly had been "seized" for the purposes of Oregon Constitution Article I, section 9. Under the Oregon Constitution, therefore, the issue is whether the officer's seizure of defendant and participation in the extraction of his blood met constitutional requirements.
They did. When he was seized, the officers had probable cause to believe that defendant was a vessel containing evidence of a crime he had committed evidence that was dissipating with every breath he took. See State v. Heintz, supra, 286 Or. at 248, 249, 594 P.2d 385. Warrantless seizure and search under such circumstances therefore is constitutionally justified, unless a warrant can be obtained without sacrificing the evidence. See, e.g., State v. Matsen/Wilson, 287 Or. 581, 584, 601 P.2d 784 (1979).
In order to determine accurately the level of alcohol in a suspect's blood at the time of the alleged crime, the police must obtain an initial sample of the suspect's blood with as little delay as possible. Testimony at the hearing on defendant's motion to dismiss established that alcohol dissipation rates vary from person to person. To determine the dissipation rate of any particular individual, it is necessary to take more than one blood sample. A nurse at the hospital testified that the "usual practice" was to draw the blood samples one hour apart. Thus, the first blood sample must be drawn early enough so that a measurable amount of alcohol will still be present in the suspect's blood an hour later. This evidence established that exigent circumstances existed justifying the warrantless extraction of at least the initial blood sample, so long as the extraction was made promptly after the suspect was taken to a place where it could be made. He was taken to such a place in this case. No warrant was required for the initial testing of defendant's blood.[4]
*135 Before this court, however, defendant argues for the first time that, even if exigent circumstances were present at the time that the first blood sample was drawn, the state did not prove that the police could not have obtained a telephonic warrant before drawing the second sample. See ORS 133.545(5); 133.555(3). In the trial court, defendant argued that the police should have obtained a warrant before ordering hospital personnel to draw any blood. The argument focused on the period of time preceding the first blood test.[5] Defendant did not then argue that the police should have sought a warrant during the hour separating the first and second tests. The state, therefore, did not have a reasonable opportunity to produce evidence justifying the failure of the police to obtain a warrant during that hour. Because the issue was not properly presented to the trial court, we shall not address it on review.
We find no violation of the Oregon Constitution.
Defendant's claims under the United States Constitution fare no better. In Schmerber v. California, supra, the defendant was arrested at a hospital where he was being treated for injuries sustained in an automobile accident. After arresting the defendant, the investigating officer directed hospital personnel to draw a sample of the defendant's blood. The Supreme Court held that the warrantless extraction of the blood sample was reasonable under the Fourth Amendment. The Court recognized that the police have the authority to search a lawfully arrested person for evidence or concealed weapons. However, it rejected the notion that the mere fact of arrest could justify so intensive a search:
Thus, as a matter of Fourth Amendment law, the Schmerber Court concluded that the warrantless extraction of blood from a suspect never can be justified solely as a search incident to the suspect's arrest.
The Schmerber Court went on to hold that, because of the evanescent nature of alcohol in the blood, the police were justified in drawing the blood sample without first obtaining a search warrant. The Court also concluded that the test chosen to measure the defendant's blood alcohol content was reasonable and that it was performed in a reasonable manner, i.e., "by a physician in a hospital environment according to accepted medical practices." 384 U.S. at 771, 86 S. Ct. at 1836. The Court concluded that, "[g]iven these special facts, * * * the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner's arrest." Id.
We emphasize that, although the Schmerber Court referred to the search as "incident to petitioner's arrest," its holding did not turn on the existence of an arrest. Rather, the Court relied on the exigency created by the evanescent nature of blood alcohol and the danger that important evidence would disappear without an immediate search.
The Court later applied the exigent circumstances rationale in a case that did not involve an actual arrest under Oregon law. In Cupp v. Murphy, 412 U.S. 291, 93 S. Ct. 2000, 36 L. Ed. 2d 900 (1973), Murphy had voluntarily presented himself at a police station to discuss the strangulation death *136 of his wife, which had taken place earlier that evening. Shortly after Murphy arrived at the police station, a police officer noticed a dark spot resembling dried blood on Murphy's finger. The officer, remembering that the victim had lacerations on her neck and knowing that evidence of strangulation frequently can be found under the perpetrator's fingernails, asked Murphy for a sample of scrapings from his fingernails. When Murphy declined, the police took a sample of his fingernail scrapings over his protest and without a warrant. The scrapings contained traces of the victim's skin and blood, and fabric from her nightgown. The evidence was admitted at Murphy's trial, and he subsequently was convicted of murder.
The Supreme Court held that the warrantless seizure of Murphy's person and the search of his fingernails was permissible under the Fourth Amendment. The Court first noted that the brief detention of Murphy against his will was a "seizure" implicating the Fourth Amendment guarantee against unreasonable searches and seizures. Because the police had probable cause to believe that Murphy had committed the murder, and thus had probable cause to arrest Murphy, the seizure was justified. 412 U.S. at 294-95, 93 S. Ct. at 2003-04.
More problematic was the warrantless search of Murphy's fingernails for incriminating evidence. In upholding the search, the Court relied on the principles underlying cases involving warrantless searches incident to arrest. In such cases, the fact of arrest motivates the arrested person to take immediate steps to destroy any incriminating evidence on his or her person. An arrest thus creates a type of exigency justifying a warrantless search of the arrested person for, inter alia, evidence that he or she has committed a crime.
In Cupp v. Murphy, however, Murphy had not been "arrested" as that term then was defined by Oregon law.[6] Nonetheless, the police officer's question "sufficiently apprised [Murphy] of his suspected role in the crime to motivate him to attempt to destroy what evidence he could without attracting further attention." 412 U.S. at 296, 93 S. Ct. at 2004. The evidence under Murphy's fingernails, moreover, was readily destructible. The exigency created by the destructibility of the evidence, coupled with Murphy's motivation to destroy the evidence, justified a warrantless search for the very limited purpose of preserving the evanescent evidence. Id.
From a fair reading of Murphy and Schmerber together, we conclude that it is the evanescent nature of the evidence sought, not the existence or absence of an arrest, that constitutionally justifies the kind of action taken by the officers in this case. We hold that, under the federal constitution, an arrest as defined in statutory law is not required prior to the warrantless extraction of blood for the purposes of determining blood alcohol content, so long as the extraction is based on probable cause sufficiently strong to have justified such an arrest. Defendant's arguments to the contrary are wrong.
In so holding, we note that in United States v. Harvey, 701 F.2d 800, 803 (9th Cir.1983), on which defendant relies, the United States Court of Appeals for the Ninth Circuit adopted a contrary view. Relying on Schmerber v. California, supra, that court held that a formal announcement of arrest is required prior to, or substantially contemporaneous with, the taking of a blood sample without the subject's consent. As we have previously discussed, Schmerber did not hold that an arrest was a necessary prerequisite to the taking of a blood sample. The Harvey court attempted to bolster its conclusion with the following reasoning:
The difficulty with the Harvey court's approach is that it substitutes an incantation of the words of an arrest for the far more substantive value of assuring that, whatever the officers said, they had probable cause sufficient to justify arresting the criminal defendant and invading his body. If the rule in Harvey is intended to ensure that police officers analyze the circumstances in each case and consciously conclude that probable cause exists to arrest an individual for an alcohol-related crime before such an intensive search occurs, a formally stated arrest is not the only mechanism that will trigger such an analysis. The police may not restrain a suspect and draw blood from his or her body without probable cause to believe that the suspect has committed an alcohol-related crime and that analysis of a blood sample will yield evidence of that crime. The officers in this case knew that; both testified as to what they considered the circumstances to be and as to why they concluded that probable cause existed in this case. An announced arrest would do nothing to enhance the factual predicate for their actions, much less prevent arbitrary violations of privacy or after-the-fact justifications. Moreover, it is not clear what "rights" and "responsibilities," in the Ninth Circuit's view, are triggered by a formal announcement of arrest, because it does not mention any except the "rights delineated in a proper Miranda warning." Those rights are irrelevant to this inquiry. Schmerber v. California, supra, 384 U.S. at 760-65, 86 S. Ct. at 1830-33.
Our view of this issue finds support in 2 LaFave, Search and Seizure § 5.4(b) (1978). On pages 343-44 of that volume, the author states:
Although the examples cited by LaFave involve defendants who are unconscious or hospitalized, there is no principled basis for restricting the rule we announce today to those situations. See State v. Heintz, supra, 286 Or. at 257, 594 P.2d at 385 (Linde, J., concurring). The constitutionality of defendant's blood test under the federal constitution does not depend upon whether or not he was arrested at the time his blood was drawn.
The decisions of the Court of Appeals and the trial court are affirmed.
LENT, Justice, concurring.
I concur, but I add this short opinion concerning the definition of "arrest." See 304 Or. at 662 n. 1, 748 P.2d at 132.
Prior to the revision of the criminal procedure code by the 1973 legislature, the definition of "arrest" was found in former ORS 133.210:
Another section, former ORS 133.250, fleshed out the definition as follows:
The genesis of these sections is to be found in the Code of Criminal Procedure, General Laws of Oregon, chapter 36, sections 360 and 364, p. 504 (Deady 1845-1864), and they were perpetuated through various revisions of the state statutes to and including Oregon Revised Statutes.
There is nothing in those former sections to indicate that they did not apply to the entire set of statutes of this state.
Between the 1971 and 1973 sessions of the legislature, the Criminal Law Revision Commission developed a draft of a revised code of criminal procedure. The Commission's Final Draft (1972) contained an Article 4 entitled "ARRESTS AND RELATED PROCEDURES." Section 89 of that article provided:
The commentary explained that the proposed definition of "arrest" combined the prior two existing statutes, former ORS 133.210 and 133.250. The commentary does not explain why the definition was limited to use in Article 4.
Legislative action on the Commission's work resulted in the enactment of Oregon Revised Statutes, chapter 133, entitled: "Arrest and Related Procedures; Search and Seizure; Extradition." ORS 133.005 was enacted as part of that chapter and provided (as it substantially does now):
The sections of chapter 133 relating to "Search and Seizure," namely, ORS 133.525 to 133.730, are not sections to which the definition in ORS 133.005 is applicable.
I have not made further inquiry into Commission or legislative history to attempt to discover why the definition of "arrest" does not apply to the statutes on search and seizure because no party has raised any issue that requires such inquiry. I note this only to express a caveat to the *139 lead opinion's use in footnote 1 of only part of ORS 133.005 to express a definition of "arrest." There may someday be a case in which it is important to note the legislature's action in limiting the scope of the definition of "arrest."
[1] Oregon law defines an "arrest" as follows:
"`Arrest' means to place a person under actual or constructive restraint or to take a person into custody for the purpose of charging that person with an offense. A `stop' as authorized under ORS 131.605 to 131.625 is not an arrest."
ORS 133.005(1).
The arresting officer must follow the procedures set out in ORS 133.235(3), which provides:
"The officer [making an arrest] shall inform the person to be arrested of the officer's authority and reason for the arrest, and, if the arrest is under a warrant, shall show the warrant, unless the officer encounters physical resistance, flight or other factors rendering this procedure impracticable, in which case the arresting officer shall inform the arrested person and show the warrant, if any, as soon as practicable."
[2] The trial court concluded that an arrest had occurred. It therefore did not fully analyze the theory on which we decide this case.
[3] Article I, section 9, of the Oregon Constitution provides:
"No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized."
The Fourth Amendment to the United States Constitution provides:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
Section 1 of the Fourteenth Amendment to the United States Constitution provides, in part:
"No State shall make or enforce any law which shall * * * deprive any person of life, liberty, or property, without due process of law * * *."
[4] Although we are not required to so conclude in this case, we note that an argument can be made that the legislature has already declared that the existence of alcohol in the blood of a criminal suspect creates a per se exigency. The assumption underlying both the implied consent law, ORS 813.100 .130, and the chemical test of the blood statutes, ORS 813.140 .160, is that blood alcohol dissipates, it must be tested as soon as practicable and a warrant is not required, but alternative procedures reasonably calculated to insure the accuracy of the tests and consistent with the rights of the accused must be followed.
[5] The trial court held that no exigent circumstances existed vis-a-vis the initial extraction of blood because no evidence showed the amount of time that would have been lost in obtaining a warrant. As we have already noted, this legal conclusion asks too much of the evidence. From the testimony the trial court accepted, exigent circumstances existed justifying the initial, warrantless, extraction because alcohol was dissipating at some significant rate.
[6] Former ORS 133.210 defined an arrest as "the taking of a person into custody so that he may be held to answer for a crime." | 16ed89e9dddc97a70ab3c53a059454d51283c9853af1341ce50993bd3e925b95 | 1988-01-06T00:00:00Z |
50753f5d-584e-44dd-842d-c187221e0c70 | McHenry v. HOWELLS ET UX. | 201 Or. 697, 272 P.2d 210 | null | oregon | Oregon Supreme Court | Affirmed June 30, 1954.
*699 Orval Thompson, of Albany, argued the cause for appellant. On the brief were Mark V. Weatherford and Sam Kyle, of Albany.
George H. Fraser, of Portland, argued the cause for respondents. With him on the brief were Warren A. McMinimee, of Tillamook, and Cleveland C. Cory and Patricia A. Young, of Portland.
Before LATOURETTE, Chief Justice, and LUSK, BRAND and TOOZE, Justices.
AFFIRMED.
TOOZE, J.
This is an action to recover damages for personal injuries suffered as the result of alleged negligence, brought by plaintiff Georgia McHenry against Horace W. Howells and Jane Howells, his wife, as defendants. The trial court sustained defendants' motion for an involuntary nonsuit and dismissed the action. Plaintiff appeals.
Plaintiff resides at Corvallis, Oregon. She is the mother of the defendant Jane Howells. On Monday, February 4, 1951, plaintiff went to Toledo in an automobile driven by her husband. Defendant Jane Howells picked up her mother at Toledo and took her to the Howells home in Newport for a social visit of several days.
Defendants built their Newport home in 1946, but in 1949 or 1950, they remodeled it. At that time a stairway from the first to the second floor was constructed. The steps of the stairway were built of knotty pine wood and were of natural color. They were as wide as ordinary steps and had a rise of approximately seven inches. The siding of the stairway *700 was covered with light-colored wall board. The wall-to-wall carpet in the hall at the bottom of the stairway was dark red. The door at the bottom of the stairway was opposite a window covered with heavy drapes, and this door opened outward toward a bedroom. The bottom of the door was constructed flush with the top of the first step.
Lighting was available to the stairway from three sources: (1) outdoor light from a window directly opposite the stairway door; (2) electric lamps in a den which opened into the hall; and (3) an electric light in the attic at the top of the stairway.
This stairway was the scene of plaintiff's mishap on Thursday morning, February 8, 1951. On previous visits to her daughter's home, she had been up and down the stairs a half dozen times, more or less, without any difficulty, but on this particular visit she had not had occasion to use the stairway prior to the accident.
Just prior to the accident, plaintiff had decided to assist her daughter by doing some ironing while her daughter was absent from the house. She had ascended the stairs to see if the clothes hanging in the attic were sufficiently dry to be ironed. Some of her own wearing apparel was included. Taking a few of the articles on her arm, intending to return later with a clothes basket to get the remainder, plaintiff started down the stairs. The stairway door was open. While descending the stairs she had reached the second step from the bottom and from appearances being impressed that it was the bottom step, she stepped forward thinking she was stepping out on the floor, when in fact she was two steps up. As a result, she suffered a bad fall, causing the personal injuries of which she complains.
*701 1. Upon the express invitation of defendants, plaintiff was a social guest in their home, enjoying their hospitality. No element of business was connected with her visit in the home, and hence, she was in no sense a "business invitee", as that term is defined in the law of negligence. Her status was that of a licensee, and the duty owed to her by defendants was the duty owed by an owner, possessor, or occupant of land to a licensee. The authorities are quite uniform in so holding. Some difficulty has been experienced by the courts in classifying the status of a social guest. In an exhaustive note in 25 ALR2d 598, 600, the author says:
In 38 Am Jur 778, Negligence, § 117, it is stated:
2, 3. In 65 CJS 495, Negligence, § 35d, it is said:
4-6. The defendants owed plaintiff the duty to use reasonable care not to injure her through any affirmative or active negligence on their part, as distinguished from passive negligence. They also owed her the *703 duty of not willfully, wantonly, or intentionally inflicting injury upon her. As to plaintiff, defendants were subject to the rule of law that liability of an owner or occupant of premises to a licensee may be predicated upon negligence in leaving something in the nature of a trap or pitfall at a place where his presence might have been anticipated, without a warning thereof. "A `trap', within the meaning of this rule, is a danger which a person who does not know the premises could not avoid by reasonable care and skill." 65 CJS 503, Negligence, § 38.
7. In 65 CJS 503, Negligence, § 38, it is further said:
As to the duty owed by an owner or occupant of premises to a licensee, the holdings of this court have *704 been in accord with the rules above stated. In Lange v. St. Johns Lumber Co., 115 Or 337, 348, 237 P 696, we said:
See also Akerson v. D.C. Bates & Sons, Inc., 180 Or 224, 227, 174 P2d 953; Napier v. First Cong. Church, 157 Or 110, 113, 70 P2d 43; Massey v. Seller, 45 Or 267, 275, 77 P 397, 16 Am Neg Rep 553.
8. Plaintiff's status as a licensee was in no way changed by the fact that at the time of the accident she was engaged in performing a service for her daughter. One who enters a home as a social guest will not escape the liabilities of that status merely by performing incidental services beneficial to the host in the course of the visit. Gudwin v. Gudwin, 14 Conn Supp 147; O'Brien v. Shea, 326 Mass 681, 96 NE2d 163.
The law applicable to the facts in the instant case is fully discussed in the ALR note appended to the the case of Laube v. Stevenson, 137 Conn. 469, 78 A2d 693, 25 ALR 592, 598. The clear weight of authority supports our position. Also see Note, 92 ALR 1002, 1005; Note, 12 ALR 987.
9. In the instant case no claim is made, nor is there any evidence whatever to show, that defendants were guilty of any willful or wanton misconduct toward plaintiff, nor that defendants committed any act of affirmative or active negligence. The evidence is directed solely to an alleged structural defect in the *705 stairway and to the failure of defendants to warn plaintiff thereof. It is manifest that the alleged defect did not constitute a trap or hidden peril within the meaning of the law. The condition of the stairway was open and obvious; it could readily be observed by a person exercising ordinary care for his own safety. Defendants were under no obligation to reconstruct the stairway for the protection of plaintiff. Plaintiff took the premises as she found them. Defendants violated no duty that they owed to plaintiff.
The judgment is affirmed. | 61746e9cc81e8e1774bda1be2adf11e6c096dc29ecf510d8924c08370e289d39 | 1954-06-30T00:00:00Z |
3c0d1550-145a-4ed9-9ea4-d699eaf6a691 | Van Natta v. Columbia County | 236 Or. 214, 388 P.2d 18 | null | oregon | Oregon Supreme Court | Affirmed December 24, 1963.
*215 Agnes M. Petersen, St. Helens, argued the cause for appellants. With her on the brief was George G. VanNatta.
Charles N. Isaak, Deputy District Attorney, St. Helens, argued the cause for respondent. With him on the brief was David B. Williamson, District Attorney, St. Helens.
Before McALLISTER, Chief Justice, and PERRY, O'CONNELL, DENECKE and LUSK, Justices.
AFFIRMED.
LUSK, J.
This suit, commenced October 19, 1945, has, at long last, after a checkered career, found its way to the Supreme Court.
It is a suit to remove a cloud from the plaintiffs' alleged title to certain real property in Columbia *216 county, the cloud being a judgment and decree of foreclosure of the lien of delinquent taxes against such property entered on June 30, 1943, in an omnibus tax foreclosure proceeding instituted by Columbia county, entitled Columbia County v. A.E. Adams et al.
Plaintiffs acquired their title, if they have any, by bargain and sale deed dated February 6, 1945, from Mary E. Hallett, the owner of the land in question at the time of the foreclosure proceedings. Their contention is that the proceedings are void because the record contains no "application for judgment and decree," the initial pleading required by the statute, OCLA § 110-906 (now ORS 312.060).
In hearings before the late Honorable Howard K. Zimmerman, Circuit Judge, and, after his death, before his successor, the Honorable Avery A. Combs, it was established that there was no such document in the judgment roll, as it was then termed (now the trial court file), but evidence was adduced which indicated that the application had been filed, but for some unexplained reason had disappeared. On the strength of such evidence Judge Combs made a finding to the effect that the application had been filed and that the court had jurisdiction of the foreclosure proceedings and entered a decree dismissing this suit. Plaintiffs have appealed.
1. We affirm, though for a different reason. This is a collateral attack on the decree of foreclosure. Knapp v. Josephine County et al., 192 Or 327, 347, 235 P2d 564; Linn County v. Rozelle, 177 Or 245, 162 P2d 150, and is subject to the restrictions contained in section 110-920 OCLA (now ORS 312.220), which reads in part:
This statute was construed in Knapp v. Josephine County, supra, 192 Or at 347, where we said:
2. It is a familiar principle that when a judgment of a court of general jurisdiction is called in question collaterally all presumptions are in favor of its regularity and validity and such judgment is not subject to collateral attack except when the want of jurisdiction appears on the face of the record. Unander v. Stackpole et al, 208 Or 63, 71, 299 P2d 612; Anderson, Adm. v. Clough et al., 191 Or 292, 300, 230 P2d 204; Capos v. Clatsop County, 144 Or 510, 523, 25 P2d 903, 90 ALR 289. As stated in the case last cited, quoting from Freeman on Judgments (5th ed) § 383:
3. It is equally well settled that when a court of general jurisdiction exercises a special statutory power, not according to the course of the common law, no *218 presumptions in favor of jurisdiction are indulged, but the facts necessary for jurisdiction must appear affirmatively on the face of the record. Hughes v. Aetna Casualty Co., 234 Or 426, 383 P2d 55, 59.
4. By the enactment of section 110-920 OCLA the legislature in effect declared that, notwithstanding the circuit court in tax foreclosure proceedings exercises a special statutory power, its judgments, nevertheless, are entitled to the same intendments and presumptions as are the judgments of that court when it is exercising its customary common law jurisdiction. That it was competent for the legislature thus to provide we think cannot be doubted. Similar legislation has been enacted governing adoption proceedings, ORS 109.381, and in Hughes v. Aetna Casualty Co., supra, 234 Or 451, 383 P2d at 67, we cited authorities sustaining the validity of such statutes. Indeed, in a few cases the courts have, without the aid of legislation, applied to the judgments of courts of general jurisdiction exercising special statutory powers the usual presumptions in favor of the validity of those judgments, Hahn v. Kelly, 34 Cal 391, 94 Am Dec 742; Newcomb's Executors etc. v. Newcomb, 13 Bush (Ky) 544, 26 Am Rep 222; Falkner v. Guild, 10 Wisc 563. Mr. Freeman has stated with clarity and persuasiveness the reasons supporting this view.
5, 6. In this case the presumption of validity of the judgment is aided by the "Register of Actions" of the clerk of the court which bears a notation of the filing of a "Complaint and Application" in Columbia County v. Adams (the foreclosure suit) on July 9, 1942, and by recitals in the judgment of all the jurisdictional facts, including the following:
These recitals, in the absence of anything to the contrary in the record, import absolute verity. Huffman v. Alexander, 197 Or 283, 317, 251 P2d 87, 253 P2d 289; Schmid v. City of Portland, 83 Or 583, 591, 163 P 1159.
For the foregoing reasons, the plaintiffs' attack on the foreclosure proceedings must fail and the decree appealed from is affirmed. | d0c12a87469e77b353ee0ae8a89f1f73dbedef3a4d740ea22393a6ea69df424d | 1963-12-24T00:00:00Z |
1413fd8a-72b5-4afa-a826-c4a0b1cde737 | State v. Wagner | 305 Or. 115, 752 P.2d 1136 | null | oregon | Oregon Supreme Court | 752 P.2d 1136 (1988)
305 Or. 115
STATE of Oregon, Respondent,
v.
Jeffrey Scott WAGNER, Appellant.
TC 85061212; SC S32635.
Supreme Court of Oregon, In Banc.
Argued and Submitted September 1, 1987.
Decided February 26, 1988.
*1138 Gary D. Babcock, Public Defender, Salem, argued the cause for appellant. With *1139 him on the brief were David E. Groom and Phillip M. Margolin, Portland, and Lawrence J. Hall, Salem.
Jonathan H. Fussner, Asst. Atty. Gen., argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., Virginia L. Linder, Sol. Gen., and Thomas H. Denney, Terry Ann Leggert and Rives Kistler, Asst. Attys. Gen., Salem.
Richard A. Cremer, Roseburg, filed an amici curiae brief on behalf of American Civ. Liberties Union of Oregon and Oregon Crim. Defense Lawyers Ass'n. With him on the brief were Robert C. Homan, Michael V. Phillips and William L. Tufts, Eugene.
LENT, Justice.
This is the first case to reach this court under ORS 163.150(6),[1] which provides:
Defendant was charged with aggravated murder in the following indictment:
ORS 163.095 defines aggravated murder as follows:
The indictment was returned on July 3, 1985, and defendant appeared for arraignment before the court on July 10, 1985, with appointed counsel. He was granted until July 22 to enter a plea. He appeared with counsel on that date and entered a plea of not guilty, reserving the right until September 1 to demur and enter a defense *1140 of mental disease. Through counsel defendant did demur to the indictment challenging the validity of ORS 163.105[4] under various provisions of the Constitution of the United States and of the Constitution of Oregon. On January 2, 1986, the trial court overruled the demurrer.
About one week later defendant personally moved the court for an order
Defendant also moved that his then-appointed counsel and another lawyer be allowed to serve as
On January 14 the trial court heard the motion. Defendant testified to his desire and reasons for wanting to represent himself. The trial court then ruled that it would appoint another lawyer to confer with defendant about his decision to represent himself and would rule on the motion after that had occurred. On January 17 defendant, in open court and after conferring with another appointed lawyer, repeated his desire to proceed pro se. The court then ruled that it would allow him to do so. The trial court file contains no order allowing defendant to represent himself but does contain an order appointing a second lawyer
That defendant's motion to act as his own counsel was allowed also appears from the fact that he personally filed at least 12 motions, the great majority of which were allowed.
On February 10, which was the day that trial was to commence, defendant informed the court that he desired to withdraw his plea of not guilty and to enter a plea of guilty to the charge of aggravated murder. A written petition to do so had already been prepared.[5] The court then informed defendant that the court would have to ascertain that defendant understood what he was doing and the rights that he would be foregoing. At this point defendant, in open court and in the presence of his two lawyer advisers, signed the prepared petition. The court then pointed out that although the printed form referred to "talking with your lawyer," defendant was not represented. The court asked defendant if he had discussed the matter "in detail" with his advisers, and defendant answered that he had done so.
The court then explained to defendant the various constitutional rights that he would forego by pleading guilty and went on to explain the sentencing proceeding that would occur before a jury. Having satisfied itself that defendant understood what he was doing and that he was acting voluntarily and knowingly, the court once more asked defendant if he still wished to plead guilty, and defendant stated that he did. The court then stated:
On February 11, in open court, the judge ascertained that defendant had had ample opportunity to consult with "the individuals you wished to consult with regarding your plea" and that defendant still desired to *1141 plead guilty. Once more the court warned defendant that the penalty would be either death or life imprisonment. The prosecutor then stated to the court what evidence the state would offer to prove the charge. The statement covers 18 pages of transcript. After again inquiring of defendant whether he still wanted to plead guilty and possibly be sentenced to death and receiving an answer in the affirmative, the court accepted the plea of guilty.
ORS 163.150(1) provides:
Pursuant thereto the court and parties proceeded to the selection of a jury. Defendant participated fully in jury selection. Jury voir dire occupied February 11, 12, 13, 14, 18 and 19, and the transcript of voir dire covers six volumes of transcript, being some 1,146 pages. Every juror was asked about the juror's attitude or belief concerning the death penalty and if the juror would be willing to impose the death penalty in this case. A jury was impaneled and sworn.
The state's case in chief took all of February 20, 21, 24 and 25. On February 26, after the state had rested, defendant waived his right to make an opening statement and, except for evidence developed on cross-examination, presented no evidence and rested. Deputy District Attorney Engdall made the state's opening argument, and after defendant had argued, Deputy District Attorney Houchin made the state's closing argument. The court instructed the jury.
A form of verdict required by ORS 163.150(2) was submitted to the jury. The statute provides:
With respect to the second issue that the statute requires be submitted to the jury, the court instructed as follows:
The issues were presented to the jury as follows:
The jury unanimously answered each question "yes." ORS 163.150(5) provides that if each question is answered affirmatively, the sentence must be death.
The court set sentencing for two days later and on February 28, 1986, orally pronounced sentence of death. Written sentence of death was made, entered and filed on the same day.
The case is now before this court on "automatic and direct review" pursuant to ORS 163.150(6). In this court, both on brief and oral argument, defendant is represented by the Public Defender. In the brief defendant asks that this court modify the sentence of death to life imprisonment with a 30-year minimum[6] or, alternatively, to vacate defendant's plea of guilty to capital murder and remand the case with directions to the trial court to appoint counsel to represent defendant. In addition, we have allowed a brief to be filed by amici curiae, American Civil Liberties Union and Oregon Criminal Defense Lawyers Association. That brief supports defendant's position that his conviction should be reversed. The Public Defender subsequently filed a memorandum of additional authorities asking that the sentence be modified as sought in defendant's brief or, alternatively, to vacate the plea of guilty and remand the case for trial.
Defendant claims that the trial court cannot entertain a plea of guilty in a capital case because of Article I, section 11, of the Oregon Constitution, which provides:
If that claim is correct, that would dispose of this case. We therefore address that claim first. In his brief defendant argues:
Defendant cites law from six other states in support of this argument. Those states are California, Texas, Louisiana, Washington, North Carolina and New Jersey.
Public policy of the State of California is reflected in a statute that forbids an uncounselled plea of guilty where the maximum punishment for the crime charged is either death or life imprisonment without possibility of parole:
West's Ann Cal Penal Code § 1018. Oregon has no statute forbidding a plea of guilty in a capital case. Indeed, the plain text of ORS 163.150(1) envisions a plea of guilty in a capital case.
Texas public policy is also expressed in statute:
Vernon's Ann C.C.P. art. 1.14(a). In an in banc decision, the Court of Criminal Appeals of Texas considered the effect of the statute on a defendant's claim of error in allowing his plea of guilty before a jury. Defendant there contended that his guilty plea to the jury was the equivalent of a waiver of trial by jury, which was forbidden by article 1.14(a). The court reviewed the history of Texas' statutory scheme and held that criminal procedure statutes that allowed a plea of guilty to a felony before a jury had always been considered to be a jury trial. Earlier cases had held that defendants could plead guilty before a jury and be sentenced to death. Defendant contended, however, that amendment of the procedural code should cause article 1.14(a) to be so interpreted as to forbid a defendant to plead guilty before a jury because such a plea amounted to a waiver of jury trial. The court squarely rejected this contention:
Williams v. State, 674 S.W.2d 315, 319 (Tex.Cr.App. 1984).
Defendant here argues that the statute and case law of Texas do not permit waiver of trial by jury in capital cases. This is true only if one accepts the idea that a jury trial occurs where a defendant pleads guilty before the jury. We regard this as an oddity of Texas jurisprudential history. We do not regard the statute or its interpretation as being beneficial to this defendant's claim that his guilty plea was forbidden by the Oregon Constitution.
In Louisiana the public policy is declared by statute:
LSA 2 C.Cr.P. art. 557.[9] Again, there is no such statutory expression of policy by the legislature or the people of Oregon.
Defendant cites a Washington statute:
West's RCWA 10.01.060. In State v. Martin, 94 Wash. 2d 1, 614 P.2d 164, 166 (1980), the court said:
The court then held that RCW 10.01.060 "does not prevent a defendant charged with a capital offense from pleading guilty to the crime with which he or she is charged." 614 P.2d at 166. The court went on to hold that because sentence of death, under other sections of Revised Code of Washington, could only be imposed by the same jury that had decided guilt, the death penalty could not be imposed on a defendant who had pleaded guilty to first degree murder.
This is not at all the same statutory scheme as exists in this state; ORS 163.150(1) plainly provides for impaneling a jury for the sentencing stage of a conviction on a plea of guilty.
In North Carolina the court upheld a sentence of life imprisonment found by a jury to be appropriate rather than death in State v. Watkins, 283 N.C. 17, 194 S.E.2d 800, cert. den. 414 U.S. 1000, 94 S. Ct. 353, 38 L. Ed. 2d 235 (1973). The trial judge had accepted defendant's plea of guilty to the charge of murder in the first degree after making sure that defendant knew that the jury would proceed to decide whether he should be sentenced to death or life imprisonment. After sentence to life imprisonment, defendant appealed, contending that the trial court had no authority to accept his plea to murder in the first degree. The court noted that there was no statute prohibiting a court from accepting a plea of guilty to a capital crime but that the court was not aware of any case in that state in which a judge had accepted such a plea until this one. It noted that it had long been the public policy of the state stemming from court decision that an accused could not be permitted to plead guilty to a crime for which the penalty could be death. The court stated:
194 S.E.2d at 809-10. The court then noted that in 1953 the legislature had provided that a defendant could plead guilty to a charge of first degree murder if both the court and the state agreed to the plea but only if it were agreed that the punishment to be imposed would be life imprisonment. The court then affirmed the judgment:
194 S.E.2d at 811.
Apparently in response to this decision, the North Carolina legislature did see fit to change the public policy created by the courts and enacted in 1977 a statute codified as G.S. 15A-2001, which provides:
See State v. Johnson, 298 N.C. 47, 257 S.E.2d 597 (1979), explaining the change in public policy.
Defendant here argues that we should follow North Carolina's lead by holding that in the absence of a statute authorizing a guilty plea to a capital charge, a guilty plea should not be permitted. One answer is that there has not been established by the courts of this state a public policy against receiving such pleas. There has been no public policy for the legislature to change, as there was in North Carolina. The only public policy in Oregon is to the contrary as expressed in ORS 163.150(1).
The other jurisdiction to which defendant has directed our attention on this claim that one cannot plead guilty to a capital crime by reason of Article I, section 11, of the Oregon Constitution is New Jersey. He cites State v. Hightower, 214 N.J. Super. 43, 518 A.2d 482 (1986), a decision of the Appellate Division, in which defendant had been found guilty by a jury of capital murder. That having occurred, defendant instructed his counsel not to present any mitigating evidence in the sentencing stage because defendant preferred death to life imprisonment. Defendant's counsel appealed, and the court held that despite his client's wishes, counsel could present mitigating evidence in order for the jury to carry out its function of weighing both aggravating and mitigating evidence and in order that the state Supreme Court could carry out its statutory duty to consider the proportionality of a sentence of death when compared to similar cases. This decision has nothing to do with whether one can plead guilty to a capital offense.
We conclude that there is nothing in the law of those states to support defendant's contention that the Constitution of Oregon forbids a plea of guilty to a capital charge. Indeed, public policy as declared by statute in some of those states expressly permits such pleas.
Defendant's argument that Article I, section 11, of the Oregon Constitution prohibits a guilty plea in a capital case is based on a 1932 amendment to that section. Prior to the 1932 amendment, the section provided:
By Senate Joint Resolution 4, the 1931 legislature referred to the people a proposed amendment to add to section 11 a proviso:
At the general election on November 8, 1932, the amendment was adopted. Defendant contends that adoption of this clause abrogated a defendant's power to plead guilty in a capital case. We disagree.
The general rule is that in the absence of a statute forbidding it one can plead guilty in a capital case. As it was long ago stated:
1 Greenleaf, Evidence § 216 (16th ed. 1899). In State v. Watkins, supra, 194 S.E.2d at 807-08, the court acknowledged the general rule:
See also Annotation, "Pleas of non vult contendere or guilty in capital case," 6 A.L.R. 694.
From early time to late, Oregon statutes have permitted guilty pleas "to an indictment." General Laws of Oregon, Criminal Code § 132 (Deady 1866): "There are three kinds of pleas to an indictment; a plea of: 1. Guilty * * *." General Laws of Oregon, Criminal Code § 132 (Deady and Lane (1874), is the same. ORS 135.335: "The kinds of pleas to an indictment * * * are: (a) Guilty * * *." There has been no statute during this time that has excepted from those sections a plea of guilty in a capital case.
In Ex Parte Harrell, 57 Or. 95, 110 P. 493 (1910), defendant had been indicted for the crime of murder in the first degree, for which the prescribed penalty was death. He pleaded guilty. The court then took testimony to determine the degree of murder, and, finding that it was murder in the first degree, the court sentenced defendant to death. State v. Rathie et al., 101 Or. 339, 342, 199 P. 169 (1921), notes that a co-defendant of Rathie had pleaded guilty to the indictment charging first degree murder and had been executed.
Those two cases do not discuss whether in Oregon one could plead guilty to a capital crime, but in both instances defendants *1148 who did so were executed. We conclude that there was neither common-law nor statutory prohibition of such a plea.
We come then to this defendant's contention that the 1932 amendment to Article I, section 11, of the Oregon Constitution abrogated the power of a defendant so to plead.
We commence by determining what the legislature and people sought to accomplish by the 1932 amendment. The text of the amendment does not prohibit a plea of guilty in a capital case; it only provides that if one wishes to be tried on a capital charge the trial must be to a jury. The background of the amendment convinces us that the people did not have in mind abrogating the statutory and common-law rules that one could plead guilty to any charge.
The Voters' Pamphlet for "Constitutional Amendments and Measures to Be Submitted to the Voters of Oregon, General Election, November 8, 1932," at page 5, contained this:
On page 6 of the pamphlet appeared the only argument concerning the measure, and it was in the affirmative.
Senator Crawford had been the sole sponsor of the measure as it was introduced in the legislature.
We did not attempt extensive research of leading newspapers of the day to seek clues to how editors viewed the ballot measure, but we did check the recommendations on measures made in "The Oregonian" and in "The Statesman."[10] On November 7, 1932, in a column entitled "Recommendations by The Oregonian," we found: "Optional criminal trial by judges. Vote 302 Yes." In "The Statesman" on November 5, 1932, in the space usually reserved for editorials, under a heading "Recommendations on Measures," we found this:
It seems clear that the sponsor of the measure, the House members who joined him in presenting the Voters' Pamphlet argument and the editors all regarded this amendment as doing nothing more than changing the constitutional rule that a trial on a criminal charge had to be by jury.
We hold that Article I, section 11, of the Oregon Constitution does not prohibit one accused of aggravated murder from pleading guilty; it does prohibit one so accused from waiving a jury if the accused would be tried on the charge.[11]
A substantial portion of the arguments of defendant and amici hinge on the text *1150 and alleged effect of Article I, sections 15 and 16, of the Oregon Constitution. The state argues that those sections are totally without application to the issues in this case. Those sections provide:
Ballot Measures 6 and 7 were proposed by initiative petition to be voted on at the general election on November 6, 1984. Ballot Measure 6 proposed an amendment to the state constitution, which read:
The Attorney General prepared a ballot title for the measure as follows:
This proposed title was challenged as being insufficient and unfair. We addressed the challenge in Clark v. Paulus, 295 Or. 673, 669 P.2d 794 (1983), where we summarized the challenge as follows:
295 Or. at 675-76, 669 P.2d 794. An intervenor made similar and some other arguments that the proposed ballot title was insufficient and unfair. We held:
295 Or. at 677-78, 669 P.2d 794.
The proponents of the initiative measure gathered sufficient signatures to qualify the measure for a place on the ballot, and it was designated "Measure No. 6." Pursuant to former ORS 251.215, a committee was appointed to provide an "impartial" explanation of the measure. The Secretary of State appointed two members, one of whom was the counsel for petitioner in Clark v. Paulus, supra. Two of the other members of the committee were chief proponents of the measure, and the fifth member, who was the District Attorney for Multnomah County, was appointed by the first four members. The explanation prepared by this committee was as follows:
This explanation appeared in the Voters' Pamphlet for the general election in 1984 immediately following the text of the measure.
The plain language of Article I, section 40, excludes consideration of Article I, sections 15 and 16. If this were not enough, the ballot title prepared by this court makes it crystal clear that the operation and effect of section 40 is not to be affected or modified by sections 15 and 16.
We shall not consider further any argument by defendant or amici that depends on contentions grounded in Article I, sections 15 and 16, of the Oregon Constitution.
Amici and defendant contend that prior to the enactment of Article I, section 40, all persons convicted of crime in Oregon enjoyed the "protection" of Article I, sections 15 and 16, and that section 40 deprives those convicted of aggravated murder of that protection. They argue that this deprivation denies to defendant the equal protection of the laws guaranteed to him by the Fourteenth Amendment to the Constitution of the United States. They argue that a fundamental right of defendant is involved, which they identify as his "fundamental right to life." This being so, they contend, "strict judicial scrutiny" is required. On the other hand, the state argues that strict judicial scrutiny is not required and that the test for passing muster under the Equal Protection Clause is whether the section is rationally related to its purpose.
This question is one of federal law, for which we look to the Supreme Court of the United States for the applicable rules. That court has provided a test to determine when strict scrutiny is required:
San Antonio School District v. Rodriguez, 411 U.S. 1, 16-17, 93 S. Ct. 1278, 36 L. Ed. 2d 16 (1973).
Following the indicated method of analysis, we first note the obvious. Section 40 is not directed at a suspect class. It is not directed to any class characterized by age, gender, color, creed, ethnic consideration or national origin, and it does not serve to deprive anyone of the protection of sections 15 and 16 on any of those bases.
Even if we assume for the sake of argument that the right to life is a fundamental right, that does not satisfy the second inquiry *1153 unless that fundamental right is "explicitly or implicitly protected by the Constitution [of the United States]." Neither have we been directed to nor do we find any such right protected by that constitution. The text and the case law are to the contrary. The Fifth Amendment to that constitution recognizes that there are "capital" crimes, and both the Fifth and the Fourteenth Amendments to that constitution forbid deprivation of life without due process of law. Those proscriptions clearly imply that one may be deprived of life if afforded due process of law. In Jurek v. Texas, 428 U.S. 262, 96 S. Ct. 2950, 49 L. Ed. 2d 929 (1976), Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976), and Proffitt v. Florida, 428 U.S. 242, 96 S. Ct. 2960, 49 L. Ed. 2d 913 (1976), the Court has made it clear that a state may choose to authorize capital punishment for certain classes of offenses.
In San Antonio School District v. Rodriguez, supra, the Court, after reviewing a number of its earlier decisions concerning claims of denial of equal protection, came to its holding on this point:
411 U.S. at 33-34, 93 S. Ct. at 1297, 36 L. Ed. 2d at 43-44.
*1154 By their constitution the people of Oregon could not lessen the protections of the Eighth Amendment to the Constitution of the United States. To the extent, if any, that sections 15 and 16 formerly provided additional protection against the "cruel and unusual punishments" proscribed by the Eighth Amendment for murderers, sections 15 and 16 may have reflected rights or interests deemed important to the people of Oregon, but where that protection exceeded that required by the Eighth Amendment, those rights or interests were not fundamental rights under the federal constitution.
Because section 40 does not operate to the disadvantage of some suspect class and because it does not impinge on a fundamental right "explicitly or implicitly protected by the Constitution" of the United States, strict judicial scrutiny is not required.
It leaves only to consider whether it is rationally related to its purpose. Its obvious purpose is to allow punishment of death for certain unlawful homicides and to prevent review of death penalty statutes under sections 15 and 16. Quite simply, the people of this state decided by more than a 75 percent margin that the guarantees of the Eighth Amendment were sufficient protection for individuals charged with such homicides. Specifying that sections 15 and 16 would not apply to sentencing those convicted of such homicides was a rational way to achieve that purpose.
We shall now discuss the origin of Oregon's death penalty provisions.
It is undisputed that ORS 163.150 is modeled on Texas' statutory system, which was enacted in 1973 in response to Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972). If it were disputed, a comparison of ORS 163.150 with the Texas statute, Vernon's Ann C.C.P. art. 37.071, as enacted in 1973 and as amended in 1981, would soon resolve the dispute. In Jurek v. Texas, supra, defendant was convicted of murder by choking and strangling his victim and drowning her in the course of "committing and attempting to commit kidnapping of and forcible rape" on the 10-year-old victim. He was sentenced to death under the 1973 statute. The Texas Court of Criminal Appeals affirmed, and on certiorari the Supreme Court of the United States decided that the imposition of the sentence of death under the 1973 statutory system did not violate the Eighth and Fourteenth Amendments to the Constitution of the United States.
The Texas statute made death a possible penalty for "capital murder," which was defined by the penal code as murder with malice aforethought in any of five specific conditions. If one were found guilty of capital murder, the same jury was to address three issues specified in article 37.071(b):
If the jury returned a unanimous affirmative finding on all three issues, the court was required to sentence the defendant to death. Art 37.071(e). The judgment of conviction and sentence of death were required to be reviewed automatically by the Court of Criminal Appeals in a short period of time not to exceed 90 days after certification of the record. The characterization of the offense as "capital murder" as defined by statute was held to be a satisfactory alternative to specification by statute *1155 of aggravating factors or circumstances to be considered at the sentencing stage of proceedings. The Texas Court of Criminal Appeals had construed its statute as allowing the jury to consider mitigating circumstances in addressing the second issue. This was sufficient, held the Supreme Court of the United States, to satisfy the Eighth and Fourteenth Amendments. The Court also held that the second issue described in the statute was not so vague as to offend those Amendments, stating:
428 U.S. at 274-76, 96 S. Ct. at 2957-58. The Court summarized by holding that (1) the definition of capital murder requires that there be at least one statutory aggravating factor in a murder case before a death sentence can be considered; (2) the opportunity to bring before the jury all mitigating circumstances in addressing the second issue ensures that the sentencing jury will have adequate guidance to perform its function; and (3) the providing of prompt judicial review furnishes a means to promote evenhanded, rational and consistent imposition of death sentences.
Oregon's statutory system meets the criteria imposed by the Court in Jurek. It narrows the class of persons on whom the death penalty may be imposed by differentiating between aggravated murder and murder, permitting sentence of death only in those more heinous crimes defined as aggravated murder. The aggravating factor is built into the definition of the crime of which a defendant must be convicted before sentence of death may even be considered. ORS 163.095. Having identified one who may be subjected to the death penalty, ORS 163.150 requires the jury to address the same three issues as did the Texas statute and even adopts the Texas court's interpretation of its statute that the jury, in considering the three issues, may hear all relevant mitigating evidence. The Oregon statute also provides for prompt review by the highest state court.
The holding of the Supreme Court of the United States in Jurek v. Texas, supra, convinces us that the Oregon statutory system is impervious to challenge under the Eighth and Fourteenth Amendments to the Constitution of the United States.
Both defendant and amici urge us to apply Article I, section 10, of the Oregon Constitution as a "due process" clause. Section 10 provides:
Both amici and defendant concede that this would require us to "rethink" our most recent decisions in this respect. To construe section 10 as a due process clause would be to undo almost 10 years of this *1156 court's insistence that it is not a due process clause. As explained in Justice Linde's concurring opinion in Davidson v. Rogers, 281 Or. 219, 222, 574 P.2d 624 (1978), the guarantee of remedy by due course of law is a
281 Or. at 223, 574 P.2d 624. See also Linde, Without "Due Process": Unconstitutional Law in Oregon, 49 Or.L.Rev. 125 (1970). See also State v. Hart, 299 Or. 128, 140, 699 P.2d 1113 (1985), making it clear that this court will not treat "remedy by due course of law" as synonymous with "due process."
Defendant adds the contention that
We do not understand this to add anything to defendant's specific contentions with respect to those issues, and we answer them elsewhere in this decision.
Neither do the origins of section 10 give a basis for considering that "justice shall be administered * * * completely" is the same as a guarantee of due process. Once again, as Judge Linde pointed out in his separate opinion in Davidson v. Rogers, supra, chapter 40 of Magna Carta was not to be confused with chapter 39, which afforded the basis for various constitutional provisions concerning "law of the land" and "due process."
We reject the invitation to construe section 10 as a due process clause.
Defendant argues that the command of section 10 that "justice shall be administered * * * completely" is violated by Oregon's death penalty scheme because those words must mean something different from "remedy by due course of law" and
The quotation is defendant's entire argument on this point. Section 40 and the statutes to implement it were duly enacted by an overwhelming majority of the people of this state. If defendant received a trial and sentence according to those and other applicable laws, he received "justice," for justice is received if judgment is given according to the law. A law itself may be unjust, as the opponents of capital punishment believe our present law to be, but unjust and injustice are two different things.
Additionally, section 10 is certainly in the category of a general provision of law, while section 40 and its implementing statutes are specific provisions that should govern over general. The earlier section 10 has no ascendancy over the later section 40.
Defendant argues that Oregon's death penalty "scheme" offends the Constitution of the United States because it fails sufficiently to narrow the class or pool of persons who may be executed for criminal homicide.
Defendant argues that "[e]veryone convicted for capital murder in this state is eligible to be executed because the `intentional' and `deliberate' criteria are synonymous and duplicated in the trial and sentencing phases."
The terms are not synonymous for the purpose of legal analysis. We made that clear in State v. Quinn, 290 Or. 383, 623 P.2d 630 (1981), in which we held Oregon's *1157 former death penalty legislation to be in violation of Article I, section 11, of the Oregon Constitution's guarantee of a jury trial on all elements, including the requisite culpable mental state, of the criminal charge. ORS 163.115 then, as now, defined criminal homicide as murder when it was committed intentionally. Former ORS 163.116 provided for possible imposition of the death penalty if "the conduct of the defendant that caused the death of the deceased was committed deliberately." We held that this required the showing of a different and greater culpable mental state than that of "intentionally," and because former ORS 163.116 delegated this finding to the trial judge the statute was unconstitutional. In order to arrive at that result, we necessarily distinguished deliberate from intentional. We said:
290 Or. at 401, 623 P.2d 630. We pointed out that at common law and under earlier Oregon law, dividing first degree murder from second degree murder was done by providing that if intent was accompanied by premeditation and deliberation, the murder was first degree rather than second degree. We held that the trial judge was "clearly correct" in holding:
290 Or. at 404-05 n. 7, 623 P.2d 630.[12]
Defendant next argues that Oregon has made so many murders "capital murders" that the pool is not sufficiently narrowed to pass muster under the Eighth Amendment to the Constitution of the United States. He contends that Oregon law may impose the death penalty in "26 types of killings."
ORS 163.095 specifies 10 types of aggravated murder. We quote from the state's brief:
Defendant arrives at the number "26" by adding the nine types of felony murder specified in ORS 163.115 and the seven categories of victims specified in ORS 163.095(2) to the ten types of aggravated murder contained in ORS 163.095. This is over-counting. For instance, seven of the "26 types" could be reduced to one by providing that a murder is aggravated murder if the murder is related to the performance of the victim's official duties in the justice system rather than listing only the seven particular kinds of victims now specified in the statute. The same is true with respect to listing only nine felonies for the purposes of ORS 163.095(2)(d) instead of including all felonies. In each instance the listing narrows rather than expands the pool.
Oregon's ten kinds of aggravated murder narrow the pool in the manner approved in Jurek v. Texas, supra, and compares favorably in number with the 10 sentencing aggravating factors of the Georgia statute approved in Gregg v. Georgia, supra, and with the eight sentencing aggravating factors of the Florida statute approved in Proffitt v. Florida, supra.
Because Oregon's statutory scheme is so like that of Texas, we think it appropriate to quote from Jurek the Court's language concerning narrowing the pool:
428 U.S. at 270-71, 96 S. Ct. at 2955, 49 L. Ed. 2d at 937-38.
We conclude that Oregon's statutory provisions for narrowing the pool of those on whom the death penalty may possibly be visited if found guilty of aggravated murder meets the requirements of the Supreme Court of the United States in these cases arising out of Texas, Georgia and Florida.
Both defendant and amici challenge the statutory system for determining whether the death penalty shall be imposed on the basis that the terms used are so vague as to offend Article I, section 21, of the Oregon Constitution, which prohibits ex post *1159 facto laws. The substance of these challenges is that the statutes delegate to the jury to determine after the fact what conduct may be punished by death. Neither challenge is to the terms of ORS 163.095 and 163.115, which describe the conduct that is defined as aggravated murder. Rather, the challenges are to the second question that is to be presented to the jury under ORS 163.150(2)(b), which is here repeated for the convenience of the reader:
Defendant's first argument is that criminal laws must be "sufficiently certain to inform the public of what the legislature intended to prohibit or allow." We have no quarrel with that contention; it simply is not applicable to an attack on the sentencing process for conduct condemned in certain terms by the legislature.
Defendant argues that the terms "probability," "criminal acts of violence" and "continuing threat to society" are terms so vague as to be "mind-boggling." Amici make a similar but more restrained argument.
We first address the term "probability." It is true that in the mathematical or statistical sense the probability that something may exist may range from zero (impossible) to one (sure). In that sense anything that is possible has a probability of existing that may be expressed as a fraction equal to or less than 1/1. There is nothing to indicate that the people in passing this legislation meant to use the word in that sense. In its everyday usage sense, the word means the quality or state of being probable.[13] "Probable" is defined in Webster's New International Dictionary (2d ed. 1961) in this way:
The trial judge understood this to be the sense in which the statute employs the word when he instructed the jury as follows:
When the concept of probability is so circumscribed, it is not vulnerable to attack on the basis that it is too vague to pass constitutional muster. As defendant acknowledges:
Defendant quotes at some length from those dissents. We have read them; they argue from the mathematical or statistical concept of probability; we do not agree with them.[14]
As to the words "criminal acts of violence," defendant's argument is little more than rhetorical questions:
Defendant follows these questions with citation to an offer of proof in a State of Washington trial court in which a witness (according to defendant, "one of the leading authorities in the United States") stated that predictions of violence are problematical absent a specific definition of violence. Defendant's argument that "any future violence" and the leading authority's statement about the want of definition are not pertinent to the Oregon statute, for it speaks to "criminal" violence; "any violence" will not suffice to meet the statute.[15]
Defendant's attack on "continuing threat to society" as being too vague is nothing more than the bald assertion that this kind of prediction is "incomprehensible," apparently because of an excerpt from American Psychiatric Association, Diagnostic and Statistical Manual of Disorders (3d ed. 1980), in which it is asserted that after age 30 (defendant being 26 at time of trial) "more flagrant" kinds of criminality "may" diminish.
Amici question in what "society" the issue operates. They seem to argue that the question is meaningless unless the jury knows whether it is society at large or a part thereof, such as prison, that is to be the setting in which the question is posed. We conclude that the answer is what the statute says, namely "society," no matter whether the universe of that society be great or small.
Defendant and amici urge that the statutes are vague because the commission of future acts of criminal violence is not susceptible to prediction with any degree of certainty or accuracy. Insofar as this is an attack on whether this can be proven at all, they cite no authority to sustain that claim. As the Supreme Court of the United States said in Jurek, this flies in the face of the fact that judges and parole boards make such predictions every day throughout the land.
Their true attack is that expert opinion evidence should not be received on this issue because a large majority of psychiatrists and psychologists believe that practitioners in those fields believe such predictions to be faulty at least two-thirds of the time. They cite an array of studies that are not in the record in this case to buttress this claim. There is no testimony in the record that those studies and their conclusions are valid. In answer, the state cites other studies and critiques of those *1161 cited by defendant to show that a sizeable body of thought exists among experts that such predictions can be made and that psychiatrists and psychologists are better versed than others in making such predictions.
We have had this kind of issue arise before. In Bales v. SAIF, 294 Or. 224, 656 P.2d 300 (1982), we made it clear that a decision as to which of two conflicting schools of medical thought is correct is not a question of law it is a question of fact to be decided by presenting in proper evidentiary form the various views to the finder of fact. The decision made in that case and on that record is not binding on the courts or the finders of fact in later cases that present the issue. In other words, such a decision does not establish a rule of law. We also observed that the opinion of an expert should not necessarily be given less weight by a finder of fact just because the witness espouses the view of a minority of his profession.[16] In Bend Millwork v. Department of Revenue, 285 Or. 577, 585-87, 592 P.2d 986 (1979), we explained, in connection with the use of appraisal manuals that had not been made a part of the record, that a factfinder must discharge his task on the record made in the particular case and that the facts found on the record and evidence in one case do not become a rule of law to be applied in the determination of facts on another record and other evidence.
The studies and articles about prediction of future dangerousness that defendant would have us consider now were not before the jury in this case and are not in the record before us. It would be pure speculation for us to consider that the studies and the opinions of those who rely on them would be impervious to vitiation by cross-examination or contrary evidence. All we know about this is from the briefs filed in this case, namely, that there is a difference of opinion as to the validity of those studies and the position of the American Psychiatric Association.[17]
We decline to hold on this record that ORS 163.150 is unconstitutionally vague in this respect under either Article I, section 20 or section 21, of the Oregon Constitution. Jurek v. Texas, supra, rejects the contention insofar as the federal constitution is concerned.
Defendant and amici argue that the three issues to be presented to the jury under ORS 163.150(2) make the death penalty mandatory, insulate the jury from making the decision for death or life imprisonment and preclude the jury from considering some mitigating circumstances. *1162 Aside from arguments based on Article I, sections 10 and 16, of the Oregon Constitution, which we shall not address for reasons stated supra, defendant and amici apparently rely on Article I, section 20, of the Oregon Constitution, which provides:
In this respect all that section 20 demands is that persons within a legislatively-defined class be treated equally. See State v. Clark, 291 Or. 231, 240, 630 P.2d 810 (1981). The three-issue procedure applies equally to every person within the class of those convicted of aggravated murder. The statute does not apply to anyone unless that person brings himself within the class of aggravated murderers by his own conduct.
After the decision in Furman v. Georgia, supra, North Carolina and Louisiana attempted to avoid the randomness there condemned by passing mandatory death penalty statutes. In Woodson v. North Carolina, 428 U.S. 280, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976), the Supreme Court of the United States rejected this approach because an automatic death sentence precludes deciding whether death is the appropriate penalty for a particular defendant in light of that defendant's character and background and the circumstances of the offense. At the same time, in Jurek v. Texas, supra, the Court held that the three-issue procedure, which Oregon has now adopted, was not so vulnerable. The three questions permit the jury to consider, in light of information about the particular defendant and the particular crime, "not only why a death sentence should be imposed, but also why it should not." 428 U.S. at 271, 96 S. Ct. at 2956, 49 L. Ed. 2d at 938. ORS 163.150(2) does not run afoul of the federal constitution in this respect.
Defendant argues that a remark by prosecutor Engdall in opening argument to the jury told the jury that it was not responsible for the imposition of the death penalty and thereby insulated the jury from its responsibility in violation of the rule laid down in Caldwell v. Mississippi, 472 U.S. 320, 105 S. Ct. 2633, 86 L. Ed. 2d 231 (1985). Because this is not a facial attack on the statute, we shall delay addressing it until we come to specific errors claimed to have occurred on trial of this case.
Amici, noting Caldwell, then argue the effect of Article I, sections 10 and 16, of the Oregon Constitution, which we have decided have no bearing here. The rest of the argument is devoted to criticism of the decision in Jurek, but the Supreme Court of the United States has not overruled that decision, which upheld the procedure now found in Oregon's statute.
There is certainly nothing on the face of the statute to suggest to the jury that it is not responsible for a decision that the death penalty will be imposed.
Defendant and amici argue that ORS 163.150 does not allow the jury to consider all mitigating evidence. We disagree. There are three questions to be answered by the jury in resolving the three issues identified in ORS 163.150(1)(b). The statute commands:
ORS 163.150(1)(a). Even if the statute were silent, obviously, either defendant or the state would have the right to introduce any evidence relevant to the resolution of all or any of the three questions which frame the jury's resolution of the three issues. We construe the statute to mean that a defendant shall be permitted *1163 to introduce any competent evidence relevant to mitigation on any of the three issues.
The statute before the Supreme Court of the United States in Jurek v. Texas, supra, was Vernon's Ann C.C.P. art. 37.071(b)(2), which provided for submission to the jury of the issue
The Court noted that the state court had interpreted its statute to allow for the presentation of any mitigating evidence a defendant desired to present. In light of that interpretation, the Court upheld the constitutionality of the Texas scheme of capital punishment.
Exactly what the court held may be open to differing interpretations. In Jurek v. State, 522 S.W.2d 934 (Tex.Cr.App. 1975), the part of the opinion concerning jury discretion in resolving the issues presented by the Texas scheme was as follows:
Id. at 939-40. The second question to be presented to the jury under the Texas scheme was the same as that presented to the jury as the second question under ORS 163.150(1)(b)(B).
In Jurek v. Texas, supra, the Court stated that by that language the Texas court had "indicated" that it would interpret this second question so as to allow a defendant to bring to the jury's attention whatever mitigating circumstances a defendant might be able to show. In a footnote the Court noted that the Texas court had not yet construed the first and third questions and therefore had not determined whether or not the jury's consideration of those questions would properly include consideration of mitigating circumstances. In affirming the state court's decision, therefore, the Supreme Court of the United States had before it only a statute that had been construed to allow consideration of mitigating circumstances with respect to the second question. This would seem, at first blush, at least, to be a holding that the Texas statute passed constitutional muster under the Eighth and Fourteenth Amendments if the jury were allowed to consider mitigating circumstances in answering the second question.
On the other hand, some language of the Court may be interpreted to require, as a predicate for constitutionality, that the jury is to consider mitigating circumstances with respect to all three questions. The Court stated:
In the same footnote the Supreme Court noted that the first and third questions in "at least some situations" could comprehend *1164 such an inquiry. 428 U.S. at 272, 96 S. Ct. at 2956, 49 L. Ed. 2d at 938.
Defendant argues that the decision in Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978), is in conflict with Jurek. The Court in Lockett concluded that under the Ohio statute, once a defendant was found guilty of aggravated murder with at least one specified aggravating circumstance,
438 U.S. at 607, 98 S. Ct. at 2966, 57 L. Ed. 2d at 991-92. The Court held that the three listed mitigating circumstances that could be considered by the sentencer were so limited as to make the Ohio statute incompatible with the Eighth and Fourteenth Amendments to the Constitution of the United States.
438 U.S. at 608, 98 S. Ct. at 2967, 57 L. Ed. 2d at 992.
The difference between the Texas and Ohio statutory schemes is obvious. To the argument that the decision in Lockett overrules that in Jurek, we answer that the Supreme Court of the United States did not believe that is so. In plain words the Court was at pains to state that proposition:
438 U.S. at 606-07, 98 S. Ct. at 2965-66, 57 L. Ed. 2d at 990-91.
Under ORS 163.150(1), the jury may consider all mitigating factors or circumstances that are shown by the evidence. The statute does not offend the Eighth and Fourteenth Amendments to the Constitution of the United States under either Jurek or Lockett.
The dissents cite Eddings v. Oklahoma, 455 U.S. 104, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982), as vitiating the decision in Jurek as we here construe that decision. In Eddings, the Court had before it a statute that had been construed by the state court as excluding consideration of the defendant's "turbulent family history," "beatings by a harsh father," and "severe emotional problems" connected with having "been raised in a neglectful, even violent family background." Despite the fact that certain commentators cited in Justice Linde's dissent in this case question the continued vitality of Jurek because of Eddings, we find nothing to indicate that the Supreme Court of the United States is in agreement with those commentators.
We do not construe our statute to exclude evidence of the kind of factors mentioned in Eddings.
The dissents quote from Skipper v. South Carolina, 476 U.S. 1, 106 S. Ct. 1669, 90 L. Ed. 2d 1 (1986). The quoted language does no more than to rule that a defendant must be allowed to show as a mitigating factor any aspect of his character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. In other words, the sentencer must be allowed to consider any relevant mitigating evidence. That is what our statute allows.
The dissents cite Hitchcock v. Dugger, ___ U.S. ___, 107 S. Ct. 1821, 95 L. Ed. 2d 347 (1987). In that case, arising under Florida law, the trial judge instructed the jury not to consider evidence of mitigating circumstances not specifically enumerated in the Florida statute. The respondent asserted that the Florida Supreme Court had, in a decision postdating the petitioner's conviction, held that the sentencer was not limited to consideration of the statutory mitigating circumstances. The Court held that because the record disclosed that the trial judge in the case before the Court had assumed the statute limited the evidence that could be received and had so limited it, the petitioner was entitled to a new resentencing proceeding or a lesser sentence.
We discover nothing in Hitchcock that is in conflict with the decision in Jurek or that would apply to the Oregon scheme.
The dissents also cite Sumner v. Shuman, 483 U.S. ___, 107 S. Ct. 2716, 97 L. Ed. 2d 56 (1987). Justice Linde cites the case "to show the decisive point that the sentencer must not merely admit evidence but consider `non statutory mitigating circumstances.'" We have no quarrel with that rule, and we conclude the Oregon scheme is not to the contrary. We read the decision as not even impliedly criticizing the decision in Jurek. In fact, the Court impliedly reaffirmed that decision. Language throughout the decision attests to the fact that the Court, as distinguished from commentators, does not view the holding in Jurek as being questionable:
483 U.S. at ___, 107 S. Ct. at 2720, 97 L. Ed. 2d at 63.
483 U.S. at ___, 107 S. Ct. at 2721, 97 L. Ed. 2d at 64.
483 U.S. at ___, 107 S. Ct. at 2722-23, 97 L. Ed. 2d at 65-66. We see this very recent language as affirming the holdings of Gregg, Proffitt and Jurek.[19]
In Adams v. Texas, 448 U.S. 38, 46, 100 S. Ct. 2521, 2527, 65 L. Ed. 2d 581, 590 (1980), the Court stated what it thought to be the effect of Jurek on the role of the jury in answering the statutory questions:
Justice White delivered the opinion of the Court and was joined by Justices Brennan, Stewart, Blackmun, Powell and Stevens. The lone dissenter, Justice Rehnquist, did not disapprove of this language; indeed, he reaffirmed his belief in the decision in Jurek. 448 U.S. at 53-54, 100 S. Ct. at 2530-31, 65 L. Ed. 2d at 594-95.
In a case decided January 13, 1988, the Supreme Court of the United States has *1168 again affirmed its conclusion that the three questions presented to the jury by the Texas statute in Jurek, as interpreted by the Court and by the state court, sufficiently provided for the guided discretion of the jury. The case is Lowenfield v. Phelps, ___ U.S. ___, 108 S. Ct. 546, 98 L. Ed. 2d 568 (1988). In this federal habeas corpus case, among other things, the petitioner (defendant in the underlying criminal case) argued that the Louisiana statute failed sufficiently to narrow the pool of potential recipients of the death penalty. The Supreme Court of the United States said:
___ U.S. at ___, 108 S. Ct. at 554-55, 98 L. Ed. 2d at 581-82.[20] Although two members of the Court dissented from this part of the opinion and specifically discussed Jurek with respect to the pool-narrowing aspect of that decision, even the dissenters did not question the language we have underlined from the majority opinion in Lowenfield. Indeed, the dissenters quoted from Adams v. Texas, supra, 448 U.S. at 46, 100 S. Ct. at 2527, 65 L. Ed. 2d at 590, the following passage:
___ U.S. at ___ n. 4, 108 S. Ct. at 560-61 n. 4, 98 L. Ed. 2d at 589 n. 4.
Our review of these post-Jurek opinions leads us to the conclusion that the Supreme Court of the United States will uphold a scheme such as that presented in Jurek if the sentencer is allowed to consider all competent evidence relevant to any of the three questions presented. ORS 163.150(1) specifically provides for the introduction of any evidence relevant to the three questions, and, as we have noted above, even if the statute did not do so, relevant and competent evidence is admissible on any issue presented to the trier of fact.
It is argued that ORS 163.150(1)(b)(B) and the trial court's instructions pursuant thereto to the jury prohibited the jury from considering mitigating factors with respect to all three questions. It will be recalled that the statute provides:
Pursuant to the statute, the trial court instructed the jury:
Nothing in either the statute or the instruction forbade the jury from considering mitigating circumstances in the jury's consideration of the other two questions. Indeed, the court's instructions commanded the jury to consider all of the evidence in performing its task:
We consider that it would be the better practice for the trial court to instruct the jury with particularity that it is to consider mitigating evidence with respect to arriving at its answer to all three questions, but that does not mean that there was error committed in this trial for failure to do so. There was no request for such an instruction. A search of the record does not reveal any evidence that would tend to show mitigation with respect to answering the first and third questions. A court is not required to give abstract instructions.
Nothing in the Oregon statute or in the trial of this case prevented consideration of any mitigating circumstances or factors with respect to any of the three questions.
Defendant and amici assert that Oregon's death penalty scheme is unconstitutional in light of Article VII (Amended), section 3, of the Oregon Constitution because this court has construed that section to apply to criminal actions and, therefore, there can be no meaningful appellate review of a jury's decision to impose the death penalty. That section was proposed by initiative petition and adopted by vote of the people in 1910. It originally provided:
At the time of that political action by the people, Oregon law provided:
Lord's Oregon Laws § 1374. That had been the statutory law from the outset of statehood.[22]
In an early case, this court construed the term "action at law" as used in a part of *1170 the Code of Criminal Procedure concerning gambling offenses to include proceedings initiated by indictment:
State of Oregon v. Carr, 6 Or. 134, 136 (1876). State v. Evans, 98 Or. 214, 192 P. 1062, reh. den., 98 Or. 214, 193 P. 927 (1920), however, held that Article VII (Amended), section 3, did not apply to a criminal action because although it was an action at law (citing State of Oregon v. Carr, supra), it was not an action where the value in controversy exceeded $20. The court arrived at this holding by reasoning that "no value can be placed on a man's liberty." 98 Or. at 223, 192 P. 1062. We question the application of that reasoning as did this court in State v. Burke et al., 126 Or. 651, 669, 269 P. 869, reh. den., 126 Or. 651, 270 P. 756 (1928), where this court said:
State v. Cahill, 208 Or. 538, 293 P.2d 169, rehearing, 208 Or. 538, 298 P.2d 214 (1956), also stands for the proposition that section 3 is applicable to criminal actions.
Defendant argues that unless we overrule those cases by holding that section 3 does not apply to criminal cases, we shall not be able to afford meaningful judicial review as required by the federal constitution, i.e., we shall not be able "to prevent or correct injustice resulting from mistakes by juries." These arguments assume that the judicial review mandated by the decisions of the Supreme Court of the United States requires that appellate courts have power to review and do review the facts necessarily found by juries in convicting and sentencing. In other words, they argue that we should review de novo, or anew, on the record, as if this were a proceeding in equity. Nothing has been cited to us nor do we find any authority for that argument. We conclude from the decisions of the Supreme Court that our review must be to determine whether there was evidence from which the jury could have found affirmative answers to all three questions and whether the jury acted according to the law.
Defendant argues that ORS 138.050 requires that we conduct substantive sentence review. An argument might have been made to that effect prior to 1985 amendments when the statute provided for sentence review and directed appellate courts to consider the "nature and background of the offender or the facts and circumstances of the offense." The 1985 amendments deleted that language, however, and the statute now provides:
Essentially, that is the review that we have undertaken in this case as circumscribed by Article I, section 40, of the Oregon Constitution and the Eighth Amendment as interpreted by the Supreme Court of the United States.
Amici argue that ORS 163.150(6), providing for automatic and direct review by this court, overrides ORS 138.050 and requires substantive review. We have found nothing in the text of ORS 163.150 or its legislative history to suggest that the scope of our review reaches to substituting our perception of the effect of the evidence for that of the jury.
Defendant has presented a compilation of results in earlier Oregon death penalty cases. We accept that compilation at face value, but those cases did not arise under this or similar statutes. Insofar as they show that governors commuted some death sentences, that is irrelevant to the constitutional arguments now before us. As the Supreme Court of the United States lately observed:
McCleskey v. Kemp, 481 U.S. ___, ___, 107 S. Ct. 1756, 1774-75, 95 L. Ed. 2d 262, 288-89 (1987).
We shall now consider specific claims of error that defendant asserts with respect to the proceeding in this case.
Defendant argues that the indictment failed to allege facts that would give him notice that the death penalty would be sought and the "particular evidence of aggravating factors." Amici urge that the indictment is insufficient in failing to allege in the language of ORS 163.150(2)(a) that defendant "deliberately" caused the death of the victim.
ORS 132.550(7) provides:
The offense with which this defendant is charged is aggravated murder as defined in ORS 163.095(2)(a)(E), which is set forth at the outset of this opinion. The ultimate facts that make up that offense are clearly alleged in the indictment. To be guilty of aggravated murder one does not need to act "deliberately." If one is guilty of aggravated murder but the jury does not unanimously find that the perpetrator acted deliberately, the guilty one is not sentenced to death but is yet guilty of aggravated murder. There is no requirement of pleading an indictment that requires the indictment to set forth possible penalties that the law may fix for guilt on a particular charge.
Defendant contends that the lower court erred in failing, sua sponte, to excuse for cause juror Watson, whom defendant had chosen not to challenge or excuse. We set forth those parts of voir dire examination of Watson that the parties claim to be pertinent:
By defendant:
"Q. Do you believe any religious or moral beliefs would prevent you from voting in the death penalty in any case?
"A. No, I voted for to put the death penalty on the ballot.
"Q. Did you vote in the November, '84 election that reinstated the death penalty?
"A. Yes, I did.
"Q. Which way did you vote on that?
"A. I voted for it.
"Q. Would you explain to me what basis of information you used to formulate that answer?
"A. Well, it just seems to me like there is people out there killing people all the time and they are not doing nothing to them. They slap their hands and 10, 12 years, they are out and doing it again.
"Q. Some people believe in this issue, and I'll ask you: Do you believe in the issue an eye for an eye and a tooth for a tooth?
"A. You bet I do.
"Q. Do you favor the death penalty for aggravated murder?
"A. As far as I'm concerned, somebody takes somebody's life, that's murder. That should be a death penalty.
"Q. Do you believe that if the District Attorney was seeking the death penalty, that the person would probably deserve it? Do you believe if the District Attorney was seeking the death penalty on a certain person, that that person probably deserves it?
"A. If he was guilty, yes.
"Q. Do you believe that every person convicted of murder should be sentenced to death?
"A. If they were guilty, if they killed somebody, I think they should be, yes.
"Q. What do you think the death penalty accomplishes for society?
"A. Well, some of these days maybe people will wake up and just stop this killing people and getting their hands slapped, getting throwed in prison for a few years and doing it over.
"Q. In your last jury duty, do you recall the verdict that was reached in that jury?
*1173 "A. Guilty.
"* * *
"Q. If the Court instructs you contrary to what you feel the laws to be, will you follow the Court's instructions anyway?
"A. If they what now?
"Q. If the Court instructs you contrary to what you feel the law to be, will you follow the Court's instructions anyway?
"A. You mean if I don't think that's what they say is right?
"Q. Let's say you have an opinion on what the law is.
"A. Okay.
"Q. But the Judge, the Court instructs you contrary to that belief; would you follow the Court's instructions anyway?
"A. Yeah, I believe so.
"Q. Do you realize that your decision could veto any possibility of a death sentence because it has to be unanimous?
"A. Ah-huh.
"Q. Do you think that criminal defendants should have to prove that they are innocent?
"A. Well, yes, I do.
"Q. Do you feel that the fact that I pled guilty may have any influence on the outcome of your decision?
"A. Well, like I said awhile ago, guilty is guilty.
"Q. Do you feel it is better to let some guilty people go free rather than risk convicting an innocent person?
"A. Well, if they are convicted and they are guilty
"* * *
"Q. Are you aware of the seriousness of this trial?
"A. Yes, it is either life or death, I assume.
"Q. Do you feel having to make that type of decision will have an effect on your psychological any psychological effect on you with having to make a decision like that?
"A. Nope.
"Q. Would you allow fear of criticism to influence your verdict?
"A. Nope.
"Q. Do you agree or disagree that the rights of criminals are better protected than the rights of victims?
"A. Well, it seems like here lately that that's the way it's been working.
"Q. How do you feel about that?
"A. Well, it seems like criminals have more rights than we do sometimes.
"Q. How does that make you feel when you think about it?
"A. I don't really like it.
"* * *
"Q. Will the fact that there may be gruesome descriptions, pictures or testimony of this crime affect your ability to be fair and impartial?
"A. No.
"* * *
"Q. I'd like you to take as much time on this next question to give me an answer. I'm going to give you a choice of four answers. Would you say that you favor the death penalty a little, some, a lot, or you are totally for it?
"A. I'm totally for it.
"MR. WAGNER: Pass for cause." (Emphasis added.)
By prosecutor:
"Q. As you know, in most cases, and the one case that you've already had experience as a juror, the jury usually determines guilt or innocence in a case. The Court has already told all the jurors that guilt has been determined; the defendant pled guilty to aggravated murder of Jeri Koenig. He admitted that he killed her, and how he killed her, admitted the killing was done by strangulation and assault causing her death, and that she was a *1174 witness in another case at the time. So, that's been established, and the jury won't have to worry about that, won't even have to discuss it, probably shouldn't discuss it except as it relates to answering some of these questions, and that was where it should come up. Do you have any disagreement, Mr. Watson, with Oregon's two part statute for aggravated murder, that now since you don't have to do the first part, the jury would do the second part which determines what the ultimate sentence will be?
"A. Well, I just kind of think that murder is murder. You kill somebody, you kill them."
Defendant and the state each cite many cases from other forums to us in which prospective jurors were or were not excused for particular answers given in death penalty cases on voir dire. We think little is to be gained by going through those authorities one by one, for case matching is of little assistance in this area. The general rule for testing error in this respect is quite simple. The issue is whether the prospective juror's views would prevent or substantially impair the performance of the duties of the person if selected as a juror. See, e.g., Lockett v. Ohio, supra, 438 U.S. at 596-97, 98 S. Ct. at 2960, 57 L. Ed. 2d at 984-85.
It is fair to say that Watson strongly favored the death penalty. At no time, however, did he say that he would be unable to set aside his personal feelings; he did not say that his belief in the imposition of the death penalty would cause him to disobey the court's instructions on the law. In fact, when asked directly by defendant if the court should instruct contrary to Watson's belief, if he would follow the court's instructions "anyway," Watson answered that he believed that he would.
The voir dire of Watson does not establish that his views favoring the death penalty would prevent or substantially impair the performance of his duties as a juror.
If it is defendant's contention that a juror who generally favors the death penalty, as a matter of law, must be excused, we reject the contention. "A man who opposes the death penalty, no less than one who favors it, can make the discretionary judgment entrusted to him by the state and can thus obey the oath he takes as a juror." Witherspoon v. Illinois, 391 U.S. 510, 519, 88 S. Ct. 1770, 1775, 20 L. Ed. 2d 776, 783 (1968). In State v. Leland, 190 Or. 598, 227 P.2d 785 (1951), defendant argued that excluding jurors who were opposed to capital punishment resulted in a harsh and vindictive jury rather than the impartial jury to which defendant was entitled by Article I, section 11, of the Oregon Constitution. This court said:
190 Or. at 625, 227 P.2d 785.
During voir dire defendant was assisted by two experienced lawyers as legal advisers. He challenged jurors for cause when he believed it necessary.[23] He exercised 11 of his permitted 12 peremptory challenges. *1175 On several occasions he was granted recesses to confer with his legal advisers concerning challenges both for cause and peremptory challenges.
Defendant passed this juror for cause, and, although he did not exhaust his number of peremptory challenges, he did not use one on Watson. We have no way of looking into defendant's mind to determine on a cold typewritten record why defendant chose not to challenge him. Perhaps something in Watson's facial expression, tone of voice or body language caused him to be a juror acceptable to defendant. There is certainly nothing revealed in the transcript of voir dire to mandate that this court reverse the trial judge for failure, on his own motion, to excuse Watson for cause.[24]
Defendant contends that the court should have excluded the opinion evidence of John Cochran, a forensic clinic psychologist, who opined that it was more likely than not that defendant would in the future commit criminal acts of violence that would constitute a continuing threat to society. As noted above where we first discussed this issue, defendant's argument rests on the proposition that such evidence is incompetent and cannot be received. The basis for this contention is that there are a large number of studies that have caused some, or even a majority of, mental health practitioners to believe that the prediction cannot be made at all and that psychiatrists and psychologists are no better able to make it than a lay person if it can be made.
As we have already noted, the persons who conducted those studies and those who relied on them in writing the articles cited by defendant were not here available for cross-examination to test the validity of their views. Because there was no objection or challenge to the testimony of witness Cochran below on this or any other basis, there was no need or occasion for the state to produce evidence from those who believe that the studies and conclusions cited by defendant are flawed.
There is no error apparent on the face of the record in this respect.
Defendant contends that the trial court erred in admitting evidence of defendant's previous bad character, acts and criminal conduct that did not result in convictions. This evidence came in without objection, but even if it had been admitted over objection, our reaction would be the same. The evidence of these bad acts was not received for the purpose of impeachment of defendant. When evidence of a defendant's bad acts is sought to be introduced to blacken a defendant's character, we do not allow it under Oregon Evidence Code as a general rule because it does not tend to prove or disprove any fact in issue. In considering question number 2 under ORS 163.150(2)(b), however, such evidence is relevant. It is the kind of evidence on which logical human beings, every day in our society and criminal justice system, make predictions about what a person is most apt to do in the future.
*1176 Defendant did not challenge the truth or accuracy of the information which the jury received and considered on this issue.
There was no error in this respect.
Defendant urges that the state's evidence failed to prove beyond a reasonable doubt that he had a propensity to commit violent criminal acts which would manifest itself in that way in the future.
Nothing is to be gained by quoting or paraphrasing the evidence in this respect. There is a surfeit, a plethora, a veritable supersaturation of evidence from which a jury could conclude that the answer to the second question should be in the affirmative. Our task is not to conduct review of facts anew on the record; if it were, we would be convinced, as was the jury, beyond all reasonable doubt that the second question should be answered affirmatively.
Defendant contends that the trial court erred in failing on its own motion to clarify which prosecutor was right with respect to certain matters in opening argument as contrasted with closing argument.
In opening argument, Deputy District Attorney Engdall stated to the jury:
In closing argument, Deputy District Attorney Houchin told the jury:
Assuming, without deciding, that there is a conflict between what each prosecutor told the jury, we do not find that it called for the trial court to interpose itself to correct Mr. Engdall's remarks.
Actually, although they were a bit unfortunately phrased, Mr. Engdall's remarks were not inaccurate. The jury did not "technically" vote for death or life imprisonment. It did only vote how to answer three specific questions. The jury was well aware from what had transpired over the course of several days, commencing with voir dire, that it was the jury that would be deciding whether sentence of death or life imprisonment was to be imposed.
At any rate, Mr. Houchin's remarks, the last thing the jury heard before the court's charge, made it abundantly clear that by its answers the jury would be deciding the sentence to be imposed. This jury was not insulated from knowing the result of its decision in the manner condemned in Caldwell v. Mississippi, supra. To suggest that on the record in this case the jurors did not know the consequences of their answers is at least to deny reality if not an insult to the intelligence of the jurors.
In this court defendant contends that he manipulated the system to commit suicide and that the State of Oregon cannot be made a partner to that course of action. This argument is not supported by the record.
Following the murder, defendant stole the victim's motor vehicle and was apprehended in San Francisco when he drove the vehicle the wrong way on a one-way street. His escape was thus thwarted.
After arrest he had counsel appointed to defend him. When arraigned he sought and received permission for extra time to test the sufficiency of the indictment. His counsel filed a demurrer on his behalf and therein challenged the constitutionality of the death penalty statute on many separate grounds, which have been addressed in this opinion.
After he was allowed to proceed without counsel, other than in an advisory capacity, he filed and argued several pretrial motions. For instance, he filed motions for private pretrial interviews with witnesses, for payment of expert witness fees, for disclosure of grand jury testimony, for a telephone to be installed in his cell to facilitate his preparation for trial, for return of property that had been seized from him and to be allowed 24 instead of 12 peremptory challenges. He successfully opposed the state's motion that he be shackled during trial, although he conceded during argument that he was a "violent" person. He also successfully obtained a stipulation by the state that limited what the jury would be allowed to hear as to the details of his assault on the infant child of the victim.[26]
Not only did defendant ask literally hundreds of questions on jury voir dire, but during the sentencing trial, defendant vigorously and effectively cross-examined the state's witnesses. His cross-examination at times elicited testimony that was favorable to him. He successfully impeached a witness with a written document. He made objections to evidence, and some were sustained. Some of those successful objections were for hearsay and some for relevancy. His native intelligence and the advice of his lawyer advisers were artfully employed to challenge the picture of him which the state sought to paint.
In his argument to the jury, he did not ask to be executed. He urged the jury not *1178 to return affirmative findings to the three questions to be submitted to the jury. He emphasized the state's burden of proof and argued that the burden had not been met. He argued that the "bad acts" and "bad conduct" on his part during his teen years was nothing more than what the average child goes through. As to his hundred or so fights in prison and in jail, he argued that those are tough environments that demand that kind of conduct to survive.
He argued that the state had failed to prove the answer to the third question concerning provocation by the victim. He argued that she was a bad person because of her conduct and unfaithfulness to him and that she deserved what she got. He concluded his argument as follows:
Assuming, arguendo, that it is within our province to find facts as to this issue, we find that defendant was not attempting to manipulate the system so as to cause the state to assist him in committing suicide.
Finally, on this issue we agree with the state's summation in its brief in this court:
If a defendant, counseled or uncounseled, could intentionally so irritate the jury as to cause it to return affirmative answers to the three questions, thereby requiring sentence of death, and then successfully contend on appeal that he manipulated the system so as to make the state his partner in suicide, the way would be clear for every person convicted of aggravated murder to avoid the penalty of death. We repeat that we do not find that this defendant did so manipulate the system, but we believe the observation made in the preceding sentence to have validity.
The Oregon Constitution and the statutory law provide for a possible penalty of death for certain carefully defined aggravated murders; the constitution and statutes do not mandate death for such murderers. The statutes do not offend the Oregon Constitution; rather, they provide the operative vehicle by which the purpose of the constitutional provision, Article I, section 40, may be attained. So long as Jurek v. Texas, supra, remains the law, the Oregon constitutional and statutory "scheme" for sometimes imposing the death penalty does not offend the Constitution of the United States.
Defendant made a solemn choice not to contest his guilt of the crime charged in the indictment only after the trial court went to extraordinary lengths to ensure that he realized the nature of his decision and the two possible results that must flow from that decision.
Insofar as any claim of error here concerning the trial of the sentencing portion of the proceedings below may be concerned, defendant had a fair trial. Although his defense was not ultimately successful, it was vigorous and not completely lacking in skill.[27]
The judgment of conviction and sentence of death imposed by the trial court are affirmed on this review.
*1180
*1181
LINDE, Justice, dissenting.
The judgment in this case directs Oregon's public officials to put to death a defendant who discharged his lawyers, insisted on pleading guilty to a capital offense, and failed to make a serious or plausible challenge to the propriety of his death sentence. The proceeding as a whole fell far short of the kind of capital trial anticipated when Oregon's voters were asked to reinstate a death penalty in this state. It also fell short of standards set by the United States Supreme Court. There is serious doubt that the 1984 death penalty measure, which exacerbated the flaws in its already questionable Texas model, can meet federal standards.
Under the Supreme Court's standards, the sentencing authority, either the judge or a jury, must be able to reject the death penalty even when its legal basis is proved, if the sentencer concludes that additional facts militate against a death sentence in the particular case. The 1984 measure allows neither the jury nor the judge that authority. Neither the judge nor the jury actually is asked to decide for or against the penalty, as the law is written. The jury only answers three specified questions of past or predicted facts. It cannot legally respond to mitigating considerations that do not relate to those three questions.
Oregon and federal law both recognize that extraordinary procedural standards must be met if public officials are to take a person's life, even a murderer's. Oregon's complex definition of aggravated murder and the issues involved in the 1984 death penalty scheme make it impossible to meet these standards unless a skilled advocate tests the prosecution's case, even when the accused makes his own defense. The standards certainly were not met here.
I believe this dissent demonstrates the reasons why this death sentence should not stand. The case should be remanded for a proper trial, unless the state, through its prosecutor, chooses to accede to the Public Defender's proposal to impose a sentence of life imprisonment with a minimum of 30 years before defendant may be considered for parole. ORS 163.105(1).
The death penalty measure that was put on the ballot by initiative and enacted in 1984 may well be impossible to square with requirements under the federal Eighth and Fourteenth Amendments repeatedly stated by the United States Supreme Court. The reasons for this conclusion are spelled out in Part V of this opinion. In the present case, however, there are compelling independent reasons of Oregon law why the proceeding as a whole fell short of those required for a valid death sentence, though a maximum sentence short of death might be affirmed. Because the procedures and indeed the present death penalty scheme are unprecedented in Oregon, it is necessary to state those reasons in detail.
First, American law has long recognized the difference between punishment by *1182 death and all other punishments and given it important procedural consequences. The fact that defendants "stood in deadly peril of their lives" is what more than a half-century ago made an "effective" appointment of counsel a matter of federal due process in Powell v. Alabama, 287 U.S. 45, 71, 53 S. Ct. 55, 65, 77 L. Ed. 158 (1932), and compare Betts v. Brady, 316 U.S. 455, 464, 62 S. Ct. 1252, 1257, 86 L. Ed. 1595 (1942). Justice Harlan wrote that capital cases "stand on quite a different footing than other offenses. * * * I do not concede that whatever process is `due' an offender faced with a fine or a prison sentence necessarily satisfies the requirements of the Constitution in a capital case," the distinction "being literally that between life and death." Reid v. Covert, 354 U.S. 1, 77, 77 S. Ct. 1222, 1262, 1 L. Ed. 2d 1148 (1957) (Harlan, J., concurring). The passage most often quoted in the Supreme Court's recent death penalty cases is from Woodson v. North Carolina, 428 U.S. 280, 305, 2991, 96 S. Ct. 2978, 49 L. Ed. 944 (1976):
See also Eddings v. Oklahoma, 455 U.S. 104, 117, 102 S. Ct. 869, 878, 71 L. Ed. 2d 1 (1982) (O'Connor, J., concurring).
Oregon law also has long imposed stricter safeguards on potential capital cases than on other criminal proceedings. In the state's early years, the death penalty here as elsewhere was imposed much like other punishments, regardless whether defendant was represented by counsel or offered any defense. See, e.g., State v. Rathie, 101 Or. 339, 199 P. 169 (1921), Ex parte Harrell, 57 Or. 95, 110 P. 493 (1910). Even then, this court recognized that scrupulous adherence to "the rules and methods which the law has itself provided" was required "especially in capital cases." State v. Olds, 19 Or. 397, 427, 24 P. 394, 401 (1890). Later constitutional amendments introduced important differences. Article I, section 11, was amended in 1932 to permit defendants to waive trial by jury and be tried by the judge alone, but capital cases were expressly excluded. A further amendment in 1934 relaxed the existing requirement of a unanimous verdict in criminal cases and authorized ten jurors to render a verdict of guilty or not guilty, but the amendment again excluded verdicts of guilty of first degree murder, which continued to require a unanimous jury verdict.
A final, important difference arises from the adoption of the present death penalty law itself. That is the difference in this court's scope of review of death penalty cases. It, too, finds support in constitutional decisions of the United States Supreme Court.
This court's duty in a death penalty case is to subject the judgment of conviction and sentence of death to "automatic and direct review." ORS 163.150(1)(f). The death penalty law was not enacted by the Legislative Assembly. It was adopted upon popular initiative, over the deep opposition of a significant minority of Oregon's voters. The assurance that death sentences would receive "automatic" review by the state's highest court was part of the proponents' promise to the voters, to those who decided to vote for the measure as well as those who opposed it. November 1984 Voters' Pamphlet at 33.
This assurance makes a crucial change from the court's responsibility in an ordinary criminal appeal. The court does not meet its responsibility whenever it satisfies itself that it disposes of whatever arguments a defendant presents, as the majority proceeds in this case. The court's responsibility is not merely to the defendant; it is to the law that limits the unique penalty of death.
The point of "automatic" Supreme Court review is not to save a defendant the *1183 trouble of filing an appeal and, if necessary, a petition for review. The point is not to give a defendant the opportunity to save his life, if he has the desire and the help of competent counsel to do so. An ordinary appeal does that much. Nor is it to prevent a defendant's state-assisted "suicide." The point of assuring that this court must automatically review every death sentence case is to make certain that the death penalty is imposed and executed only by the criteria and within the bounds set by the law itself and by the Oregon and United States Constitutions. The Supreme Court of Pennsylvania relied on that state's similar provision for "automatic review" to invalidate a death sentence even when a defendant expressly refused to challenge it, holding that the "overwhelming public interest" in insuring that capital punishment comports with constitutional requirements and the "irrevocable finality" of the death sentence made review of its validity "imperative." Commonwealth v. McKenna, 476 Pa. 428, 440-41, 383 A.2d 174, 181, (1978).
Automatic review under the death penalty measure therefore is not primarily an act of concern for a defendant who may merit little concern and demand none at all. The defendant is not allowed to waive review. It is not sympathy with a killer that explains the vigils outside prisons when the state schedules the execution of one of its people. Because the court's duty is to assure that the state puts no one to death unless the sentence qualifies under all criteria of the law, the court needs a record on which the relevant issues can be determined and, to the extent that they depend on facts, have been properly determined in the circuit court. This cannot be done if a defendant, by refusing counsel or reducing them to the role of "advisers" and pleading guilty, eliminates potential legal and factual issues from proper determination by the court or jury. These issues are important to others than the defendant.
Together, the unique nature of the death penalty, the requirements embodied in the jury trial provisions of Article I, section 11, and the purposes of "automatic and direct review" bar execution of the death sentence in this case.
To see how a proceeding like that in the present case can frustrate the certainty required for a death sentence, one must begin with a careful examination of the death penalty law.
ORS 163.150 itself does not define aggravated murder, the crime for which the death penalty is authorized. It prescribes additional procedures and criteria for imposing the death penalty. But ORS 163.150 presupposes that the defendant has committed aggravated murder before the court proceeds to the sentencing proceeding. That supposition will often depend on debatable issues, as the following examples show. They are included here, not because they arise in this case, but because they illustrate why no unrepresented defendant can simply by pleading guilty to aggravated murder provide the predicate for a death sentence with the requisite degree of certainty.
Aggravated murder is defined in ORS 163.095 as follows:
Whether a murder is an "aggravated" murder under this statute turns on questions of law as well as on facts, questions that demand professional knowledge of law and professional responsibility for making a proper record.
What, for instance, will qualify as a "thing of value" for purposes of ORS 163.095(1)(a) and (b)? Cf. State v. Whitley, 295 Or. 455, 459, 666 P.2d 1340 (1983) (property must be a "thing of value" for burning it to be arson).
Under subsection (1)(c), how closely must the elements of homicide in another jurisdiction, perhaps in another language, correspond to the elements of murder or manslaughter in Oregon?
What is "torture" within the meaning of subsection (1)(e)? If a defendant had pleaded guilty under this subsection without counsel to raise that question, before this court circumscribed "torture" in State v. Cornell/Pinnell, 304 Or. 27, 32, 741 P.2d 501 (1987), there would be no assurance that the defendant facing a death sentence actually had committed aggravated murder.
What kind of persons qualify under ORS 163.095(2)(a)(B) as being "charged with the duty of custody, control or supervision of convicted persons"? What does the subsection mean by a murder "related to" the victim's official duties? In paragraph (E), how far does a "juror or witness in a criminal proceeding" include potential jurors and witnesses in anticipated future proceedings, and must this status be known to the murderer? See State v. Maney, 297 Or. 620, 626, 688 P.2d 63 (1984). In paragraph (F), does an "officer" of a court of justice who is not an "employe" include, for instance, a prosecutor or other member of the bar? Cf. ORS 9.010(1) (any state bar member is an "officer of the court").
Does "otherwise confined in custody" in subsection (2)(b) mean for purposes of aggravated *1185 murder and a potential death sentence what it means for warning a person before police questioning, or is it any clearer? Cf. State v. Milligan, 304 Or. 659, 748 P.2d 130 (1988) (compelled blood samples taken without formal "arrest"); State v. Okeke, 304 Or. 367, 745 P.2d 418 (1987) (excluding evidence seized from person in involuntary confinement at detoxification center); State v. Magee, 304 Or. 261, 744 P.2d 250 (1987) (person held for questioning in police station). Does "the perpetrator of a crime" in subsection (2)(e) include every person potentially punishable for the crime or only the person who committed the decisive act? Cf. ORS 161.150 to 161.175 ("Parties to crime").
Some of these questions are difficult, others are easier, and some may never arise in an actual prosecution for aggravated murder. There is no need to answer them in the abstract here. What questions like these show is that neither a circuit court nor this court can assure that a death sentence is not applied beyond its authorized reach when a defendant pleads guilty and does not raise or let counsel raise the legal issues. In the present case, defendant was allowed to pursue a course that prevented the lawyers who were appointed to "advise" him from making an effective challenge to the state's proof of aggravated murder. Without a guilty plea, it is not at all certain whether a jury would have been convinced beyond a reasonable doubt that defendant was motivated to kill his lover because he resented her willingness to testify to his assaulting her child (which is the basis of this aggravated murder charge) rather than out of jealousy or some other psychic drive. He similarly prevented an effective challenge to the death sentence in the sentencing phase, to which I shall return.
A guilty plea also can leave doubts under the aggravated murder law unresolved when the prosecution excludes the death penalty, but that is not unusual; pleas of guilty to felonies carrying prison sentences often do not accurately match the exact statutory crimes that the defendant in fact has committed. See Rise v. Board of Parole, 304 Or. 385, 396, 745 P.2d 1210 (1987) (Linde, J., concurring). This tolerance for inaccuracy need not exclude murders defined as "aggravated" in ORS 163.095 as long as the death penalty is not an issue. The unique and irreversible nature of that penalty makes error on the side of death intolerable in capital cases.
The heightened demand for certainty is reflected in at least two provisions. As already stated, the death penalty law demands of courts the assurance that this state's officials not put anyone to death in the name of the people of Oregon beyond the criteria set by the law and by constitutional bounds. Also, Article I, section 11, of the Oregon Constitution makes distinctions between "capital cases" and other criminal prosecutions that clearly seek a higher threshold of certainty before a sentence of death may be imposed and executed, certainty sufficient when tested to convince a jury unanimously beyond a reasonable doubt.
Article I, section 11, provides:
The majority dismisses the exclusion of "capital cases" by explaining that the 1932 amendment was designed to allow criminal trials before a court without a jury, which the section previously prevented, and that defendants long had been allowed to plead guilty to capital crimes as to any other crimes. That is a historically correct statement, but it misses the point.
The question is not why the 1932 amendment allowed defendants to waive a jury and be tried by the judge alone, with the judge's consent. The question is why the amendment for the first time created a distinction and did not allow defendants to do so in "capital cases." The reason could not be to relieve judges of a difficult burden, because the amendment required the judge's consent in any case. Rather, the exclusion of "capital cases" points to another concern, to the same concern that explains the exclusion of "first degree murder" when the section was again amended in 1934 to allow convictions by less than unanimous jury verdicts. That concern, of course, is to assure the highest degree of certainty by a unanimous jury that every element of a capital crime has been proved beyond a reasonable doubt before a court may order a defendant to be put to death.
The heightened demand for certainty reflected in the amended Article I, section 11, is frustrated if a defendant can foreclose jury scrutiny of each element of a capital crime simply by pleading guilty. It is no answer that a defendant is free to waive a procedure that is provided for his protection, for the 1932 amendment does not permit the defendant in a capital case to waive a jury and be tried by the court alone. To repeat, more than the defendant's self-interest is at stake.
A number of those states that have the death penalty at all do not allow defendants at will to plead guilty and be sentenced to death. The majority opinion reviews cases cited by the Public Defender and painstakingly distinguishes the laws in those states from Oregon's laws. Those cases and laws indeed differ, but that does not deny their significance for the issue before us. It was expressed by the Supreme Court of North Carolina as a matter of judicial policy before a statute reversed it:
State v. Watkins, 283 N.C. 17, 30, 194 S.E.2d 800, 809-10, cert den 414 U.S. 1000, 94 S. Ct. 353, 38 L. Ed. 2d 235 (1973). The same policy is necessarily implied in Article I, section 11. Whatever may have been the early practice, after the 1932 amendment there is no acceptable explanation for an interpretation that would let a defendant circumvent the section's requirement of a unanimous verdict in a capital case by pleading guilty yet not by choosing a trial by the court without a jury. The sensible interpretation is that a defendant cannot circumvent that requirement at all.
The certainty required for a valid death sentence was similarly frustrated by the manner in which defendant was permitted to conduct the sentencing phase of his case.
Like the aggravated murder law, the death sentence statute, ORS 163.150, bristles with difficulties. Some are pure questions of law; others require an adequate factual record. They obviously were beyond the competence of this or any unrepresented defendant.
The statute provides that a defendant is to be sentenced to death if the jury affirmatively decides three issues:
ORS 163.150(1)(b)(A)-(C). The issues are to be decided on evidence taken at trial and in the sentencing proceeding. ORS 163.150(1)(a).
The second of these issues poses the greatest problems of law and of fact. The text of paragraph (B) demands careful scrutiny.
The first sentence calls for the jury to decide "[w]hether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society." The majority construes "probability" to mean "more likely than not," as did the trial court. It leaves the meaning of the conditional "would" rather than the future "will" unexplained. "Would" if what? But harder problems remain unresolved.
What are "criminal acts of violence"? Are they limited to bodily violence directed against a person or persons? The court could so limit the statute, but the words do not, and the limitation is not self-evident. Are arson and bombing of buildings acts of violence? Does a person with a propensity to get at his victims by killing or torturing their pets or other animals commit criminal acts of violence?[1]
The statutory test is further qualified. The first sentence of the subsection, quoted again for emphasis, poses the issue "[w]hether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society." What do the emphasized words qualify? What must constitute a continuing threat to society, the nature of the anticipated criminal acts of violence, or the degree of their probability?
Moreover, the words make a distinction between probable criminal acts of violence that constitute a threat to society and others that do not. The distinction must have meaning; we are not free to treat it as surplusage.
ORS 174.010. See also Portland Adventist Medical Center v. Sheffield, 303 Or. 197, 200, 735 P.2d 371 (1987). A defendant may not be sentenced to death rather than to prison whenever he or she is likely to engage in future criminal violence against someone or something, but only if this probability (or the violence, whichever the clause means) threatens society. Because the statute precludes treating every probable assault as a threat to society, does it exclude defendants whose violent propensities are narrowly focused on one or a few individuals? The world contains persons *1188 who do not willingly assault any human being but war against institutions with dynamite and sabotage, and others who lead highly respectable public lives and privately assault only their wives or their children. Which are and which are not a "continuing threat to society"? And do those words exclude probable violence limited to fellow prisoners, who have been "removed from society" for its protection? The answer can be crucial in assessing the danger "to society" posed by a defendant who is going to prison for a very long time.
Once again, the present point is not that all these questions eventually need answers. The present point, rather, is that these crucial issues demand analysis and an evidentiary record, both of which are obviously beyond the capacity of an unrepresented defendant. They certainly were neither analyzed nor pursued in the record that led to this defendant's death sentence.
As if these problems with ORS 163.150(1)(b)(B) were not bad enough, worse follows. After assigning to the jury the task to determine the "probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society," ORS 163.150(1)(b)(B) continues:
This sentence adds a new and crucial set of issues that no unrepresented defendant can be expected to recognize, let alone deal with. Certainly this defendant could not and did not deal with them. As a consequence, an indispensable element played no role in sentencing defendant to death.
To see the crucial nature of the "mitigation" issues of law and fact, one must review their source.
ORS 163.150(1)(b)(B) plainly (for once) says that the jury shall be instructed to consider the defendant's age, prior criminal conduct, mental or emotional pressure at the time of the crime, and other "mitigating circumstances offered in evidence" in determining the probability that the defendant "would commit criminal acts of violence that would constitute a continuing threat to society." Not in determining whether he or she should be put to death, or any other issue. The jury is to consider "mitigating" facts only in estimating the defendant's propensity to further dangerous criminal violence.
The source of the Oregon statute's sentence on mitigating circumstances is found in a decision of the Texas Court of Criminal Appeals in Jurek v. State, 522 S.W.2d 934 (1975). That decision sustained a Texas death penalty law which called for the jury to decide the same three issues copied in ORS 163.150(1)(b) without the sentence about mitigating circumstances, and which later was sustained against federal constitutional attack in Jurek v. Texas, 428 U.S. 262, 96 S. Ct. 2950, 49 L. Ed. 2d 929 (1976). Although the Texas law did not refer to mitigating circumstances, the Texas court stated that "in determining the likelihood that the defendant would be a continuing threat to society," the jury could consider a defendant's past criminal record, his age, and whether he was acting under another's duress or domination or under extreme mental or emotional pressure. 522 S.W.2d at 939-40. When Jurek reached the United States Supreme Court, the lead opinion quoted this passage from the Texas court's opinion to show that Texas let the jury consider mitigating evidence, as required by other Supreme Court decisions, in answering the second statutory question. Jurek v. Texas, supra, 428 U.S. at 272-73, 96 S. Ct. at 2956-57.
The pitfalls in the Jurek version of the Texas law soon became obvious. Professor *1189 Charles Black noted them in a devastating critique of Jurek. Black, Due Process for Death: Jurek v. Texas and Companion Cases, 26 Cath.U.L.Rev. 1 (1976). Professor George Dix published two critical analyses of Texas cases tried under that law. Dix, Administration of the Texas Death Penalty Statutes: Constitutional Infirmities Related to the Prediction of Dangerousness, 55 Tex.L.Rev. 1343 (1977); Dix, Constitutional Validity of the Texas Capital Murder Scheme: A Continuing Question, 43 Tex.B.J. 627 (1980). See also Gillers, Deciding Who Dies, 129 U.Pa.L. Rev. 1 (1980) at 37-38 n. 166. The fallacy of tying "mitigating circumstances" to a question about defendant's probable future violence that the jury must answer "yes" or "no" was not academic logic-chopping; it was demonstrated in practice, and it was no secret.
Nevertheless, the sponsors of Oregon death penalty law, despite a previous failure with importing the Texas statute into Oregon, see State v. Quinn, 290 Or. 383, 623 P.2d 630 (1981), again copied the Texas law and added the mitigating factors of the Texas court's Jurek opinion to the probability-of-continuing-criminal-violence issue defined in ORS 163.150(1)(b)(B), presumably on the theory that this would establish its validity under the United States Constitution. There is no doubt under the Oregon statute that mitigating evidence is expressly tied to the jury's assignment to predict the continuing threat of a defendant's criminal violence. The jury was so instructed in this case.[2]
The lead opinion in Jurek v. Texas, however, was signed by only three justices. Its brief treatment of the role of "mitigating circumstances" was superseded by later Supreme Court decisions. In striking down an Ohio death penalty law in 1978, Chief Justice Burger wrote:
Lockett v. Ohio, 438 U.S. 586, 605, 98 S. Ct. 2954, 2965, 57 L. Ed. 2d 973 (1978). Even though Ohio had "liberally construed" what evidence was admissible on the issue of mitigation, its statute limited a sentencing court to relating the evidence to three statutory mitigating issues in deciding whether a defendant would live or die. The Chief Justice wrote:
Id. at 608, 98 S. Ct. at 2967. In his review of capital sentencing laws after Lockett, Professor Stephen Gillers concluded that the Lockett rule invalidated the Texas sentencing model and any other scheme that "channels" the sentencing body's use of mitigating evidence toward answering prescribed factual questions. Gillers, supra, 129 U.Pa.L.Rev. at 31-37. That, of course, is exactly what ORS 163.150(1)(b)(B) does.
*1190 In 1982, the Court adopted the "rule in Lockett" as the basis for invalidating an Oklahoma death sentence because the trial court and the appellate court had construed Oklahoma law as excluding consideration of the defendant's "turbulent family history," "beatings by a harsh father," and "severe emotional disturbance" connected with having "been raised in a neglectful, sometimes even violent, family background." Eddings v. Oklahoma, 455 U.S. 104, 113-16, 102 S. Ct. 869, 876-77, 71 L. Ed. 2d 1 (1982). The Court did not volunteer exactly what facts must be regarded as "mitigating" and what they must mitigate, questions that obviously are crucial to the conduct of a death penalty proceeding. But Eddings left no doubt that mitigating circumstances could not be confined to disproving some factual element of a defendant's past or future conduct, as ORS 163.150(1)(b)(B) does. And the kind of facts wrongly excluded from consideration in Eddings are just as likely to have made a defendant predictably more likely to engage in future violent acts.
The significance of Eddings for the Texas law was apparent. One Texas scholar wrote: "The Eddings decision raises serious questions about the constitutionality of the Texas capital sentencing procedure." Benson, Texas Capital Sentencing Procedure After Eddings: Some Questions Regarding Constitutional Validity, 23 South Tex.L.J. 315 (1982). Although in Lockett the plurality opinion had distinguished the Texas law as three justices in Jurek had understood it from the defects of the Ohio law, "the rule promulgated in Lockett, as interpreted and applied in Eddings, may signal the end of the Texas scheme." Id. at 323 (footnote omitted). Professor Benson concluded: "In light of Lockett and Eddings it appears that the present Texas statutory scheme for sentencing in capital cases is constitutionally inadequate under the Eighth and Fourteenth Amendments." Id. at 331 (footnotes omitted).
Later Supreme Court decisions have repeated the importance of untrammelled consideration of mitigating factors. In Skipper v. South Carolina, 476 U.S. 1, 4, 106 S. Ct. 1669, 1670-71, 90 L. Ed. 2d 1, 6 (1986) the Court wrote:
In 1987, the Court unanimously reversed a death sentence when the state court had excluded mitigating factors that were not made relevant by Florida law:
Hitchcock v. Dugger, ___ U.S. ___, ___, 107 S. Ct. 1821, 1824, 95 L. Ed. 2d 347, 353 (1987). Later in 1987, the Court again followed these cases to reverse a Nevada death sentence, because the statute allowed no consideration of possible mitigation in sentencing a life-term prison inmate for murder. Again the Court wrote:
Sumner v. Shuman, 483 U.S. ___, ___, 107 S. Ct. 2716, 2727, 97 L. Ed. 2d 56, 71 (1987). And the Court quoted Hitchcock v. Dugger to show the decisive point that the sentencer must not merely admit evidence but consider "nonstatutory mitigating circumstances." Id. at ___, 107 S. Ct. at 2722, 97 L. Ed. 2d at 66. Though these cases involved the laws of different states and distinguishable facts, they leave no doubt of the Court's insistence on broad consideration of individualized mitigating factors.
Lockett, Eddings, and their sequels cast serious doubt on the Texas practice, but their significance for ORS 163.150(1)(b)(B) is still more obvious. In Texas "mitigating circumstances" are not part of the statute but were judicially attached (however illogically) to the jury's assignment of estimating defendant's future criminal violence. Texas courts might try to undo this connection in an effort to satisfy the misconception of the lead opinion in Jurek v. Texas, although Professors Dix and Benson each concluded that in fact the Texas courts have not done so. It is difficult if not impossible to insert the broad consideration of "mitigating aspects of the defendant's character" and other mitigating circumstances as demanded by "the rule in Lockett" even into the Texas statute. But in Oregon, the sponsors of ORS 163.150(1)(b) foreclosed any such judicial manipulation by expressly tying "mitigating circumstances" to the second issue that the jury is told to answer "yes" or "no," the specific issue of danger to society from a defendant's probable criminal acts of violence. While agreeing with most of Justice Gillette's dissent, 305 Or at 219, 752 P.2d at 1200, I see no room in the statute for a court to instruct the jury to answer different or additional questions. The statute designedly denies both the jury and the court any responsibility for actually choosing the death sentence once the three statutory questions are answered. If "mitigating circumstances" in a defendant's background, such as those in Eddings, relate to something other than the prediction of future violence, the statute makes a death sentence mandatory.
The state's brief distinguishes the particulars of the Ohio statute in Lockett, but of course that does not relate to the Supreme Court's subsequent affirmation and reaffirmation of "the rule in Lockett" as a general rule requiring consideration of mitigating aspects in every case. The Department of Justice ultimately does not defend the validity of ORS 163.150(1)(b) as the sponsors wrote it. Its brief only says that this court should find a way to "construe" the measure to pass constitutional muster. It offers no suggestions how that should be done, whether by inventing additional issues to be put to the jury different from those specified in the statute, or by what other means. This is not a matter of interpreting the meaning of existing words. It would require radical surgery, "to insert what has been omitted, and to omit what has been inserted," contrary to ORS 174.010. And it would not allow affirmance of the death sentence in this case, in which the trial court quite rightly instructed the jury to consider any mitigating circumstances only in deciding the second statutory question. See note 2, supra.
The majority believes that it can save the statute by construing it to provide for the introduction and jury consideration of what the majority calls "mitigating" evidence on the first and third questions as well as the second. The majority opinion sometimes speaks of admitting such evidence and sometimes of telling the jury to consider it, but the terminology is not the important point. Of course defense evidence bearing on all three statutory questions must be admitted, and of course defense counsel and the court will remind jurors to consider *1192 it (though again, the procedure in this case failed to assure that either would occur). ORS 163.150(1)(a) expressly requires that much.
That, however, is not what the Supreme Court's phrase "mitigating circumstances" means. If "mitigating circumstances" only meant evidence detracting from one of the three statutory criteria, the requirements would be identical if the Supreme Court had never written a word about the death penalty. Rather, the Supreme Court refers to "mitigating circumstances" as any circumstances in the individual defendant's case that might legitimately move the sentencing judge or jury to conclude that the defendant should not be put to death despite meeting the other qualifications for a death sentence. The judge or jury must be free to consider whether circumstances other than those relevant to the statutory tests in some degree diminish a defendant's culpability, see, e.g., Tison v. Arizona, 481 U.S. ___, 107 S. Ct. 1676, 95 L. Ed. 2d 127 (1987),[3] or whether even a highly culpable defendant's past background and individual characteristics should count against society's taking his life, as in Eddings v. Oklahoma, supra.
To all quotations from the Supreme Court's opinions on the mitigation issue, the majority answers only that the Court has not overruled Jurek v. Texas, supra, that the Court in fact continued to refer to Jurek as recently as this winter in Lowenfield v. Phelps, ___ U.S. ___, 108 S. Ct. 546, 98 L. Ed. 2d 568 (1988). Undeniably the Supreme Court sometimes sounds like a band marching to the beat of more than one drummer; but when this court looks only for citations of Jurek, it is asking the wrong questions, as Justice Gillette's dissenting opinion shows. The passage from Lowenfield emphasized by the majority, for instance, cited Jurek primarily on the question whether a Louisiana death penalty statute adequately narrowed the class of persons eligible for the death penalty by specifying aggravating circumstances, only mentioning in a purely descriptive sentence what the Jurek plurality had "concluded" about the discretion allowed under the Texas practice. Id. at ___, 108 S. Ct. at 554-55. That was not the issue before the Court. The Court has seen the problem of "guided discretion" as one of allocating responsibility to decide between life and death both to legislators and to sentencers. The Louisiana statute in Lowenfield was reviewed to see whether it left the jury too much at large to impose the death penalty, not whether it left discretion not to impose it.
It is idle to insist that Jurek must be overruled before Oregon's statute can be found to fall short of the Supreme Court's standards. The Court has no occasion to "overrule" Jurek until another Texas case appears in a posture unsuitable for a denial of certiorari. The Court's opinions over the years since Jurek have arrived at a rule that the legislature must substantially narrow the class of cases eligible for the death sentence to the worst crimes, and that in this remaining class the sentencing judge or jury also must retain some final degree of discretion, not confined to statutory findings of fact, whether actually to *1193 exact that penalty from the individual defendant under the circumstances of the individual case. The measure presented to the voters and adopted in 1984 did not and does not meet this second test.
It might well be a service to invalidate this statute now. That would give the state an appeal to the Supreme Court or let the sponsors of another death penalty measure start over. This case does not unavoidably require that. In any event, given the well-nigh insuperable problems with ORS 163.150(1)(b) here reviewed, patently this unrepresented defendant could not and did not present the analysis and evidence needed for the required certainty that a death sentence may validly be imposed and carried out.
The requisite presentation of the analysis and evidence needed for a valid death sentence is not barred by a defendant's rejection of representation by appointed counsel. A defendant cannot be excluded from his own defense. Article I, section 11, of the Oregon Constitution guarantees that "the accused shall have the right * * * to be heard by himself and counsel * * *." The United States Supreme Court has held that the Sixth Amendment recognizes an accused's right to defend himself that the states must respect. Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). This right of the accused, however, does not prevent the state from taking steps to assure that its laws are correctly applied. Specifically in capital cases, the accused's right to defend himself does not displace a state's determination to impose and carry out a death sentence only if its legal and factual bases have been tested and established beyond a reasonable doubt. That determination and the accused's procedural rights can and must be accommodated.
Judicial opinions have divided on the issue of how this should be done. Faretta itself was not a capital case. It was a prosecution for theft, and the Supreme Court, by a 5-4 majority, held that the California Court of Appeal erred in denying defendant's request to proceed pro se. Moreover, the Faretta court noted that "a State may even over objection by the accused appoint a `standby counsel' to aid the accused if and when the accused requests help, and to be available to represent the accused in the event that termination of the defendant's self-representation is necessary." Id. at 835 n. 46, 95 S. Ct. at 2541 n. 46. Subsequently, the Supreme Court affirmed a defendant's conviction for robbery and life imprisonment as a recidivist over his objection that "standby counsel" appointed for him had interfered in his conduct of his own defense. McKaskle v. Wiggins, 465 U.S. 168, 104 S. Ct. 944, 79 L. Ed. 2d 122 (1984). Justice O'Connor's majority opinion held that Faretta did not bar unsolicited participation by "standby counsel," but "standby counsel" may not interfere over defendant's objection with defendant's own defense, create confusion by "multiple voices `for the defense,'" id. at 177, 104 S. Ct. at 950, or "destroy the jury's perception that the defendant is representing himself." Id. at 178, 104 S. Ct. at 951. In proceedings outside a jury's presence, a trial court "must be considered capable of differentiating the claims presented by a pro se defendant from those presented by standby counsel," id. at 179, 104 S. Ct. at 951, and the court may call on "standby counsel" even over objection to guide a defendant through courtroom procedures also in a jury trial. Id. at 184, 104 S. Ct. at 954. Justices White, Brennan and Marshall dissented on grounds that the Court's test allowed Wiggins's "standby counsel" too much interference in his defense.
As already noted, these were not capital cases. They did not involve any right to bar or restrict participation of court-appointed counsel in a capital sentencing proceeding, particularly when the correctness of legal and factual bases of a death sentence must be able to withstand "automatic" appellate review. In such a case, a *1194 recent New Jersey decision reversed a trial court ruling that allowed a defendant to instruct counsel not to present evidence in mitigation of his crime and of the death penalty. Because without such a presentation the jury could not discharge its statutory duty, nor could the New Jersey Supreme Court exercise its mandatory review, the appellate court ordered the trial court to let counsel present mitigating evidence. State v. Hightower, 214 N.J. Super. 43, 518 A.2d 482 (1986). See also People v. Chadd, 28 Cal. 3d 739, 621 P.2d 837, 170 Cal. Rptr. 798, cert. den. 452 U.S. 931, 101 S. Ct. 3066, 69 L. Ed. 2d 431 (1981) (sustaining statute denying guilty plea without counsel's consent); Massie v. Sumner, 624 F.2d 72 (9th Cir.1980), cert. den. 449 U.S. 1103, 101 S. Ct. 899, 66 L. Ed. 2d 828 (1981) (sustaining automatic statutory appeal against defendant's objections).
The same principle applies here. It would be absurd to hold that a state denies a defendant "life, liberty, or property, without due process of law" under the Fourteenth Amendment whenever the state insists on assuring itself that it takes his life (or his liberty or property, for that matter) only in strict compliance with law.[4] If there is any tension between that insistence and a defendant's right to present his own defense, the tension lies in the possibility of confusing a jury by divergent voices "for the defense," McKaskle v. Wiggins, supra. It lies partly in the concept of "standby counsel," which is why the present opinion keeps that phrase in quotation marks. For "standby counsel" ordinarily means counsel who have been appointed to offer legal advice to a defendant who rejects legal representation and chooses to conduct his own defense. It ordinarily implies "standby counsel for the defendant." That was the intended role of counsel in this case. If a defendant then rejects the advice and insists on silencing counsel, the conflict of roles discussed in McKaskle v. Wiggins is hard to resolve.
In such a situation, in a capital case that must withstand the test of automatic review, a court can and should instruct appointed counsel to present the legal arguments, make the motions and objections, and call and examine the witnesses necessary to make the required record, and it should clearly inform the jury that counsel is acting independently of the defendant and is not permitted to prevent the accused from presenting his own defense, even when counsel thinks the attempt misguided or not responsive to the requirements of the law. Of course, since the state already is represented by the prosecutor, the task of appointed counsel in this public capacity would be to assure effective adversary procedure to test the prosecutor's case against both legal and factual requirements. Such a procedure could have gone far toward avoiding many of the flagrant flaws in this death sentence proceeding.
Competent counsel, for instance, might at least have tried to determine what kind of "criminal acts of violence that would constitute a continuing threat to society" are within or outside the scope of ORS 163.150(1)(b)(B), and just how the "mitigating factors" required under the Supreme Court's Eddings and Lockett decisions relate to the questions submitted to the jury under ORS 163.150(1)(b). They might have called, examined, and cross-examined *1195 expert witnesses on the second statutory question, a question that the majority opinion holds is open to proof in each individual case. They certainly would have challenged the prosecutor's wholly improper and prejudicial peroration, in his closing speech to the jury, in which he called upon the jury to "determine whose life is more valuable; Jeri Koenig's and the rest of us, those of us in society whatever that society may be, or this Defendant's."
The three issues defined in the death penalty law emphatically do not include whether the victim's life is more valuable than the defendant's. The death penalty law would not permit the jury to engage in such a comparative valuing of lives if a highly respected and "valuable" member of society were to murder a penniless criminal, an addicted burglar or a blackmailing prostitute. It equally does not permit it in the more common situation presented in this case. To quote Chief Justice Thayer's criticism in State v. Olds of the district attorney's "conscience of the community" speech against that defendant:
19 Or. at 440, 24 P. at 406.[5] Today's majority opinion agrees, 305 Or. at 180, 752 P.2d at 1177 and n. 25, but does nothing about it. The prosecutor's argument is another error apparent on the face of the present record that the trial court might have found ways to correct if there had been someone other than this self-important but incapable, unrepresented defendant to bring it to the court's attention.
From the beginning of statehood in 1859, two principles of humane penal laws have been enshrined in Oregon's constitution, presumably to place them beyond the reach of legislators and transitory majorities. One principle, guaranteed in Article I, section 15, is that "[l]aws for the punishment of crime shall be founded on the principles of reformation, and not of vindictive justice." The other, in Article I, section 16, provides that "[c]ruel and unusual punishments shall not be inflicted, but all penalties shall be proportioned to the offense." In 1984, Ballot Measure 6 enacted Article I, *1196 section 40, of the Oregon Constitution, which provides that the penalty for aggravated murder, as defined by law, shall be death "[n]otwithstanding sections 15 and 16 of this Article."
If section 40 is valid, its effect is to create two opposing principles of punishment in Oregon's criminal law. The principle of punishment for practically all crimes must be "reformation," not "vindictive justice." Vindictiveness revenge, hatred, revulsion may not motivate the punishment for rape, for arson, for robbery, for the most brutal cruelty to women or children. Vindictiveness may not motivate the punishment for killing another person, not even for most murders. But when a murder fits one of the complex definitions of aggravated murder, described in part II of this opinion, the civilizing restraints of sections 15 and 16 are excluded. After 130 years, emotions of vindictiveness and revenge now are declared to be a respectable basis for public administration of Oregon law in some cases but not in others. So are cruel and unusual punishments, but for the safety net provided by the federal Eighth and Fourteenth Amendments. Vindictive and cruel, unusual, or disproportionate punishments are forbidden (absent other aggravating circumstances) when a woman murders her husband or her child, her father or her mother, but such penalties are allowed when she murders both, or when the victim is one of a list of officials, or if the defendant was in custody at the time. The state now may exact cruel or disproportionate vengeance when the victim is any judge or court employee, or an officer of the police and corrections system or a fellow inmate, but not if the defendant instead kills an officer's wife or child, a legislator, an agency official, or a prison employee not charged with the supervision or control of inmates. See ORS 163.095, supra.
The majority says that this radical difference in the Constitution's penal principles created by the partial suspension of Article I, sections 15 and 16, needs only to be "rational" in order to satisfy the Fourteenth Amendment's mandate of equal protection of the laws, because the majority does not perceive a "fundamental" interest at stake in the difference, though a defendant's life or death may depend on it. Because, in my opinion, other reasons invalidate the death sentence in the case before us, I do not pursue the equal protection issue at length; but the majority's treatment of the Supreme Court's equal protection jurisprudence is quite inadequate. The majority would have us believe that the Supreme Court would treat a distinction between some offenders that may be subjected to vindictive, cruel, unusual or disproportionate punishments and the majority of offenders who may not be so punished as it would treat a distinction between plastic and paper milk containers. See Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 101 S. Ct. 715, 66 L. Ed. 2d 659 (1981).
To use a seemingly farfetched example, a state might make sterilization an available punishment for aggressive robbers and not for cautious nonaggressive burglars, or for burglars of residences and not for robbers of banks, and defend each scheme on some "rational" hypothesis that either group poses a greater threat of forced pregnancy to women than the other. Yet this example resembles the statute struck down in Skinner v. Oklahoma, 316 U.S. 535, 62 S. Ct. 1110, 86 L. Ed. 1655 (1942), which found a denial of equal protection in a law that provided for the sterilization of persons repeatedly convicted of most felonies involving moral turpitude, such as larceny, but excluded others, such as embezzlement. Skinner appears in the majority's opinion only in a footnote to an unrelated citation. The majority is satisfied not to look far either for support or for refutation of the equal protection claim.
Beyond the challenge to the distinctions made by Oregon's scheme on its face, other issues can be expected to arise whether the scheme is applied equally, or "upon the same terms," Oregon Constitution, Article *1197 I, section 20.[6]See State v. Freeland, 295 Or. 367, 667 P.2d 509 (1983) (discretionary decisions in criminal prosecutions must apply defensible criteria). Issues of equal treatment of similar offenders, of course, are hard to brief persuasively in the first death penalty case under the 1984 law. By the time unequal selection of capital cases can be demonstrated, it presumably will be too late for this and several other defendants, whose lives will have been taken in the course of the current experiment with the death penalty.[7] Other issues also remain unexamined.[8]
To summarize:
1. The Supreme Court has said that a death penalty may not be mandatory but must allow the sentencing authority to consider mitigating circumstances. But the 1984 death penalty measure allows neither the jury nor the judge to decide against a *1198 death sentence even when there are mitigating facts that would incline them to do so.
This is because neither the jury nor the judge actually decides for or against a death sentence as such. If the jury conscientiously decides specified facts decides that the defendant acted deliberately and unreasonably in response to any provocation, and that he presents a danger of future crimes of violence then the statute makes the death penalty mandatory. The jury, of course, must consider any relevant evidence offered by the defendant to negate one or more of these facts, but that is not "mitigation." Even if the trial court admits evidence that a defendant's acceptance of killing was formed in combat as a soldier or while growing up in the violent streets of public housing projects, that he was brutalized by mistreatment as a child, or in a "reformatory," or as a prisoner of war, the statute does not let a conscientious jury decide that the defendant does not deserve to die.
If the Supreme Court's opinions mean what they say about leaving room for individualized judgment of mitigating circumstances after the other elements qualifying a case for a potential death sentence are found to exist, as reviewed in Justice Gillette's dissent, then the 1984 measure does not meet federal standards. This court does not have the final word on that federal question. But when the court finds itself as much in doubt as it does in this case, surely we should risk erring on the side of life rather than of death and leave it to the state to appeal to the Supreme Court if it so chooses.
2. The 1984 measure on its face also may violate the Fourteenth Amendment in its selective suspension of the guarantees of the Oregon Constitution against vindictive, cruel, unusual, or disproportionate punishments. In effect, the measure asserts that Oregon wants to maintain for most classes of crimes the humane penal philosophy that has been part of its constitution since 1859 but with respect to other offenders wants to give rein to motives of vindictiveness even to the point where punishment is cruel, unusual, or disproportionate. Harsh as this sounds, legally that is what the measure means.
3. I phrase these federal constitutional points with the conditional words "if" and "may" because this court would not have to decide them now, although the majority's action puts such a decision squarely up to the United States Supreme Court. Important issues of Oregon law should not be overlooked in the debate over the federal "mitigation" issue. This particular death sentence should be set aside in any event.
The procedure by which this case was tried in the circuit court and which the majority now finds acceptable and adequate for review in this court, doubtless was conscientious on the part of the circuit judge and lawyers assigned to advise the defendant. Nevertheless, the procedure was inadequate and a bad precedent for future capital cases.
The death penalty statute imposes on this court the duty to subject each conviction involving a death sentence to "automatic and direct review." This means review of each element needed for a death sentence, even if it does not require the court to decide anew facts found at trial upon adequate evidence. This court will face many such cases each year, if juries are bound to impose death sentences without mitigation whenever unprovoked deliberateness and dangerous propensities are shown, as the majority thinks is constitutionally permissible.
Review of even one death sentence case is a heavy burden; review of many will be unbearable unless the cases are tried with as much professional skill and care as the legal system can muster. The backlog of appeals in states where the death penalty has existed longer can approach levels where conscientious supreme court judges have little time for the many other important issues demanding their attention. The pressure will mount to deal with death sentence review as with ordinary appeals, *1199 to examine a death sentence case only for trial court "error" properly objected to, preserved and raised on appeal, and to dismiss more errors as "harmless," as already shown by the majority's treatment of the trial court's failure to correct the prosecutor's final jury argument in this case. See supra, 305 Or. at 211, 752 P.2d at 1195. This does not provide the degree of certainty that a death sentence was properly imposed that the provision for Supreme Court review is supposed to assure.
The demand for certainty has other roots than sympathy for a convicted murderer, as sometimes seems to be thought. The higher statutory and constitutional standards for capital cases also reflect the fact that executions at the hand of a state's public officials implicate the state's citizens in an act that many find morally repugnant. It therefore is not a defendant's privilege to volunteer for conviction of a capital offense and to prevent an adequate test of the prosecution's case for the death sentence, as defendant did in this case. Article I, section 11, of the Oregon Constitution may not prevent a confession to the facts in open court, but I would hold that it prevents a guilty plea when the prosecution seeks the death penalty, as explained in Part III of this opinion. A defendant's right to present his own defense does not deny the state the means to assure that the prosecution's case is tested in a professionally qualified adversary manner. That did not occur here.
4. Other issues remain on which federal caselaw will offer little help. Oregon's Constitution requires that the law be administered "on equal terms" in similar cases. This will be a difficult test for Oregon's legal system, given the unpredictable incidence among the counties of the extraordinary costs of a full death penalty trial and the pressures on prosecutors and public defense counsel to negotiate pleas.[9] Thorough and meticulous recording and comparison of potential as well as actual capital prosecutions cases will be needed to determine whether the constitutional standard is met. This lies beyond the capacity of the state's public defense lawyers. In fact, the state Public Defender already has asked to withdraw as counsel in death penalty cases pending in this court because of inadequate resources to prepare and brief these intensive and extensive proceedings on top of the already vast volume of criminal appeals. Perhaps the price of the death penalty to taxpayers is not widely understood, but high price will not allow unequal administration.
The death penalty is not just another criminal penalty, as both the opinions of the United States Supreme Court and our own Constitution make clear, and standards adequate for the trial and review of ordinary penalties are not adequate for the death penalty. The exacting standards demanded before the state may take a person's life are hard to maintain and may give way under the pressure of even modest numbers of cases. Perhaps those who adopted Oregon's death penalty measure expected its application to be a rare event. But it is reported that nationally about 2000 persons are awaiting execution, including scores in many states comparable to Oregon, and there is no reason to expect this state's share to be less than proportionate.[10] At bottom, the question is whether society can keep reassuring itself that it means to use the death penalty only rarely, in exceptional cases and safeguarded by extraordinarily thorough procedures, at a time when the criminal behavior that qualifies as capital offenses tragically has become too common to be called exceptional.
Because in addition to the doubtful validity of the 1984 death penalty measure itself, *1200 the procedure that led to the present sentence of death, and therefore the record and procedure on review, fell short of the standards that this state has set for capital cases, I dissent from the affirmance of this death sentence.
GILLETTE, Justice, dissenting.
A majority of the court today concludes that defendant received due process of law under the Eighth and Fourteenth Amendments to the Constitution of the United States at his sentencing hearing. In so concluding, the court by interpretation limits the scope of "mitigating factors" that may be considered in connection with the three questions put in the sentencing statute to those mitigating factors which have some bearing on the questions. The court further concludes that the jury was correctly instructed with respect to the scope of its authority concerning evidence of mitigating circumstances and, finally, that in any event, no mitigating evidence offered with respect to the defendant or the crime he committed called for any further or different instructions to the jury than those actually given. For the reasons which follow, I respectfully disagree with the court as to all three of the foregoing conclusions and therefore dissent.
The present Oregon death penalty statute, ORS 163.150, is derived from the Texas statute approved in Jurek v. Texas, 428 U.S. 262, 96 S. Ct. 2950, 49 L. Ed. 2d 929 (1976). That case was one of five decided the same day. (The other four were Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976), Proffitt v. Florida, 428 U.S. 242, 96 S. Ct. 2960, 49 L. Ed. 2d 913 (1976), Woodson v. North Carolina, 428 U.S. 280, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976) and Roberts v. Louisiana, 428 U.S. 325, 96 S. Ct. 3001, 49 L. Ed. 2d 974 (1976).) All were cases involving the constitutionality of various death penalty statutes that had been enacted or amended in the wake of the Supreme Court's earlier opinion in Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972). Three of the statutes those involved in the Georgia, Florida and Texas cases were upheld. Two those involved in the North Carolina and Louisiana cases were struck down. The lead case among those that upheld statutes was Gregg v. Georgia, supra. Jurek v. Texas, supra, the case that dealt with the Texas statute from which the present Oregon statute was adopted, was a relatively short follow-up opinion based on Gregg.
The Texas statute that was upheld in Jurek v. Texas provided that a person convicted of capital murder could be sentenced to death if a jury impaneled for that purpose affirmatively answered the following three questions:
Tex. Code Crim. Proc.Ann. art. 37.071(b) (Supp. 1975-1976).
The Supreme Court found the Texas statute constitutional. It did so, however, only on the understanding that Texas law did not automatically require the imposition of the death penalty on any person convicted of capital murder who fit the three criteria, but rather also permitted the introduction of mitigating evidence during the sentencing phase:
Jurek v. Texas, supra, 428 U.S. at 267, 96 S. Ct. at 2954. As the court further explained, id. at 271, 96 S.Ct. at 2956:
As already noted, the Texas statute asked three questions of the jury, as does the Oregon statute (with one modification in the Oregon statute which I address later). Concerning the Texas scheme, the Supreme Court concentrated only on the second of the three questions, i.e., the question of the probability that the defendant would commit criminal acts of violence in the future. This focus on the second question cannot be read as indicating that the Texas statute would have been regarded as constitutional if it had affirmatively provided that the question of mitigating factors could only be considered by the jury in connection with the second question, but not in connection with the other two. As the Court said itself, just before discussing the second statutory question, "[t]hus, the constitutionality of the Texas procedures turns on whether the enumerated questions allow consideration of particularized mitigating factors." Id. at 272, 96 S. Ct. at 2956. (Emphasis supplied.) And, in a footnote at that same page, the Court specifically noted, with respect to this issue:
Id. at 272 n. 7, 96 S. Ct. at 2956 n. 7.
From the foregoing I conclude that, even had there been no cases following it to further develop the idea,[1]Jurek v. Texas stands for the proposition that a statute which narrows the kind of homicides that can be declared capital homicides and which then further narrows the pool of defendants faced with the death penalty by identifying three aggravating factors that the jury must find to be present is constitutional, provided that it is also permissible for the defendant to offer and the jury to consider evidence of any kind that tends to mitigate against an affirmative answer to the three statutory questions. This seems to me to make eminent good sense. There surely are circumstances that would militate against an affirmative finding with respect to the first and third criteria, as *1202 well as the second, although the second was the only one discussed in the Jurek opinion. (In addition to the example given by the Supreme Court with respect to the third criterion, it seems obvious that evidence concerning an offender's background and circumstances could show that his mental condition, while not sufficient to constitute a defense under Oregon criminal law, was nonetheless such that a jury might not wish to find that he was guilty of the "deliberation" which the jury was required to find in order to give an affirmative answer to the first question.) The majority also seems to concede that Jurek stands at least for this limited proposition. However, the majority refuses to recognize that Jurek and the other cases decided the same day were only the beginning of the Supreme Court odyssey in the area of the death penalty and the scope of jury authority with respect to it.
The specific Jurek requirement that mitigating factors be considered with respect to the second question in the Texas statute was written into the second question when Oregon adopted the Texas approach. For some reason, the drafters of the Oregon referendum seem to have concluded that the mitigating factors inquiry was pertinent only with respect to the second of the three questions to be put to the jury. As I think I have already demonstrated, Jurek does not say that. Neither, I think, do cases decided after Jurek imply that this is all that Jurek stands for. About the only argument to the contrary would come from Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978). At one point in that case, the Supreme Court plurality, referring to the Gregg group of cases, had this to say about Jurek:
Id. 438 U.S. at 606-7, 98 S. Ct. at 2966. The foregoing is merely a description of the specific issue Jurek addressed. It in no sense intimates that, had the issue been squarely presented, the Court would not have held also that mitigating circumstances had to be considered for any other purpose that might lead the jury to conclude that imposition of the death penalty was inappropriate. Other statements made by the plurality in Lockett (and consistently relied upon in later opinions) lead me to this same conclusion, viz., that mitigating circumstances must be considered by the jury without limitation in order for the statutes to be constitutional:
*1203 Id. at 604-5, 98 S. Ct. at 2964-65 (emphasis in original).
These statements by the plurality in Lockett suggested an even broader role for "mitigating circumstances" than the role implied in Jurek: "mitigating circumstances" included any facts that might lead a jury to conclude that an otherwise death-eligible defendant ought to receive a sentence less than death, and the jury had to be empowered so to conclude. That is, whatever the statutory scheme and whatever the evidence that affirmatively established that a defendant was death-eligible, the jury had to be free to spare the defendant if other evidence satisfied the jury that sparing him would be just.
Later cases absolutely made clear what the plurality opinion Lockett had implied. In each of these later cases, a majority of the full Court joined in adopting the Lockett plurality approach.
The first of these cases was Eddings v. Oklahoma, 455 U.S. 104, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982). The defendant in Eddings was a 16-year-old youth who, with several companions, ran away from their Missouri homes. Their car subsequently was stopped by an officer of the Oklahoma Highway Patrol. Eddings shot and killed the officer with a shotgun. He was remanded to adult court for trial on a charge of murder in the first degree.
The Oklahoma statute, Okla. Stat. Ann. tit. 21, § 701.12 (West 1980), included a list of seven aggravating factors to be considered in determining whether or not to impose the death penalty. From among those factors, it was alleged that the murder Eddings committed fit three: it was especially heinous, atrocious or cruel, it was committed for the purpose of avoiding or preventing a lawful arrest and there was a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. Okla. Stat. Ann. tit. 21, § 701.12(4), (5) and (7).
In mitigation, Eddings presented substantial evidence at the hearing that he had led a troubled life. His parents had been divorced when he was quite young. He had lived with his mother until he was 14, during which time he received little or no supervision. The mother was an alcoholic and, possibly, a prostitute. Sent to live with his father at the age of 14, Eddings continued to be out of control. The only form of discipline the father was able to impose was physical punishment. Other evidence indicated that Eddings was emotionally disturbed in general, that his mental and emotional development were several years below his age, that he had a sociopathic antisocial personality and that approximately thirty percent of youths suffering from such a disorder grew out of it as they aged. Other evidence also suggested the possibility of reformation.
At the conclusion of the evidence, the trial judge (who was the responsible sentencer) weighed the evidence of aggravating and mitigating circumstances. He found that the state had proved the aggravating circumstances. As to the mitigating circumstances, however, the court made it clear that it considered the defendant's youth to be the only pertinent mitigating circumstance and that such a circumstance could not outweigh the aggravating circumstances present. The judge sentenced Eddings to death. The case eventually reached the Supreme Court.
In its majority opinion, the Supreme Court began by quoting from the plurality opinion in Lockett quoted earlier in this opinion (305 Or. at 121, 122, 752 P.2d at 1141-1142). The court then summarized the applicable rule as follows:
Eddings v. Oklahoma, supra, 455 U.S. at 112, 102 S. Ct. at 875.
The Court then proceeded to apply the rule in Lockett to the case before it. The Court first noted that both the Oklahoma trial judge and the Oklahoma Court of Criminal Appeals had found that no mitigation evidence save that concerning the youth of the defendant was pertinent because no other evidence tended to provide a legal excuse from criminal responsibility. The Court said,
Id. at 113-15, 102 S. Ct. at 876-77. (Emphasis in original.) The foregoing fully illustrated for the first time how widely the net of "mitigating circumstances" under the Eighth and Fourteenth Amendments sweeps, in the view of the Supreme Court.
The next significant case in this line of cases was Skipper v. South Carolina, 476 U.S. 1, 106 S. Ct. 1669, 90 L. Ed. 2d 1 (1986). In that case, the defendant had been convicted of capital murder and rape, and sentenced to death. At his sentencing trial, defendant offered but the trial court excluded testimony of jailers and a regular visitor regarding petitioner's good behavior during the seven months he had spent in jail awaiting trial. On appeal, he argued that this evidence was evidence in mitigation of punishment that should have been considered in determining whether he should receive the death penalty.
The Supreme Court agreed. Speaking for six members of the Court, Justice White wrote,
*1205 Skipper v. South Carolina, supra, 476 U.S. at 4, 106 S. Ct. at 1670-71. Having restated the pertinent rules, which the court identified as "well established," id., the Court then went on to hold that it was error of constitutional magnitude to exclude the evidence of mitigating circumstances relating to the defendant's behavior during the months he spent in jail awaiting trial. Id. at 4-8, 106 S. Ct. at 1671-73. The Court concluded:
Id. at 8, 106 S. Ct. at 1673.
One year later, a unanimous court reversed yet another death penalty by relying on the Skipper/Eddings/Lockett line of analysis. In that case, Hitchcock v. Dugger, ___ U.S. ___, 107 S. Ct. 1821, 95 L. Ed. 2d 347 (1987), the defendant was accused of the strangulation death of a 13-year-old girl. Throughout a variety of appeals that eventually reached the United States Supreme Court, he argued that the advisory jury and sentencing judge (which was the procedure followed in Florida) improperly had been precluded by law from considering certain evidence of mitigating circumstances that had been introduced. The Court described the evidence offered by the defendant in mitigation:
Id. at ___, 107 S. Ct. at 1823-24. A unanimous Court, speaking through Justice Scalia, reversed, stating:
(Id. at ___, 107 S. Ct. at 1824.)
The Supreme Court has thus with increasing clarity established that juries must be permitted to choose a sentence less than death based on any mitigating circumstances, not just those that apply directly to a particular state's statutory criteria for death qualification. This rule has emerged from cases dealing with a *1206 wide variety of statutes involving one virtually identical to Oregon's (the Texas statute in Jurek) and one designed in the same mold (the Oklahoma statute in Eddings.)
The way in which the majority deals with the cases that I have discussed is instructive as to the majority's narrow (and, I think, constitutionally incorrect) reading of those decisions and the requirements of due process.
Concerning Eddings v. Oklahoma, the majority states as follows:
(305 Or. at 161, 162, 752 P.2d at 1165-1166.)
I respectfully suggest that the foregoing quotation focuses on the wrong questions and, in any event, gives the wrong answer. For me, at least, Eddings should not be viewed as a case questioning the validity of Jurek. I assume, as does the majority, that Jurek is still good law. But Jurek was a case that focused on the constitutional permissibility of a particular statutory method of creating a class of death-eligible defendants. Eddings, on the other hand, was a case that assumed the constitutionally permissible creation of such a class and instead focused on those matters that a jury had to be permitted to consider in determining whether a member of that death-eligible class should actually be executed. As to that second question the only one with which my dissent is concerned the majority will say no more than
(305 Or. at 167, 752 P.2d at 1169.)
To the contrary, as I hope my review of the case law establishes, both the required scope of the jury's consideration of mitigating evidence and its authority pursuant to that consideration are broader than the majority acknowledges. Indeed, one may fairly ask how the majority believes that evidence of a "turbulent family history," "beatings by a harsh father," or having "been raised in a neglectful, even violent family background" have anything to do with any of the three questions to be submitted to the jury under Oregon law. I respectfully submit that they do not and, if they do not but are nonetheless admissible under Oregon law (as the majority acknowledges), the jury has to be told something with respect to what it is to do with the information. The only thing it could be told is that it has the constitutional authority to answer one of the three statutory questions "no" (in spite of the fact that other evidence would justify a "yes" answer) and thereby reprieve a death-eligible defendant from the death penalty he otherwise would receive an instruction which would, of course, depart from the statute.
The majority also dismisses Skipper v. South Carolina, supra:
(305 Or. at 160, 161, 752 P.2d at 1165.) Again, other language already quoted from the majority opinion is inconsistent with *1207 this statement. Whatever else it does, the majority is obligated to answer this question: if a jury must consider all mitigating evidence, including mitigating evidence that does not bear any apparent relationship to any of the three statutory questions the jury must answer, what is the jury to do with such evidence and what is the range of its authority? It is particularly difficult to understand what the majority means when it refers to evidence "that the defendant proffers as a basis for a sentence less than death," unless it believes the jury has some role to play in addition to answering the three questions.
The majority also says nothing that explains why Hitchcock v. Dugger, supra, does not require the result for which I argue. The majority simply says, with respect to that case:
(305 Or. at 161, 162, 752 P.2d at 1165-1166.)
Again, inasmuch as the continuing vitality of Jurek is not the crucial point, the majority's comment with respect to that case is of no help. With respect to the balance of the majority's description of Hitchcock, one comes away with the impression that the majority believes that all the Supreme Court did was to rule that the trial judge in that case had somehow made a mistake under Florida law. As my earlier discussion of the case indicates, however, the decision was a constitutional decision holding that the failure of the trial court to permit the jury to consider certain mitigating circumstances not identified as relating to any aggravating circumstance under Florida law was error of constitutional dimension requiring the vacation of a death sentence. Surely, that constitutional ruling "would apply to the Oregon scheme," or to the scheme of any other state.
The majority's insistent focus upon whether or not Jurek has been overruled misses this point, with the result that its construction of the Oregon statutory scheme is at odds with present constitutional rules. In summary, I believe that the majority misunderstands and misapplies the line of cases beginning with Lockett and running through Eddings, Skipper and Dugger. All of those cases, without regard to the kind of statutory scheme with which they deal, require that a jury in a death sentencing proceeding be permitted to hear any mitigating circumstances relating to either the offender or the offense and further be permitted, based upon that evidence, to chose to reprieve an otherwise death-eligible offender from the supreme penalty. The most important part about this rule, as I have described its development, is that it proceeded from a plurality opinion in Lockett to a unanimous opinion in Dugger. Although the Supreme Court has had great difficulty in dealing with other aspects of the death penalty, see, e.g., McCleskey v. Kemp, ___ U.S. ___, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987) (racially disparate impact of sentences of death) and Lowenfield v. Phelps, ___ U.S. ___, 108 S. Ct. 546, 98 L. Ed. 2d 568 (1988) (degree to which statute defining capital murder sufficiently narrows the pool of death-eligible defendants), it has achieved remarkable unanimity in the development of this part *1208 of the death penalty doctrine.[2]
None of the foregoing necessarily requires holding that the Oregon statutory scheme is unconstitutional on its face. This court could so construe the statute as to permit the admission of all mitigating evidence and to require an instruction to the jury delineating the scope of the jury's authority to reprieve an otherwise death-eligible defendant on the basis of that evidence.
I do not here propose any particular solution. One solution perhaps would be to instruct the jury that, even if it concludes that all three statutory questions should be answered "yes," it nonetheless should answer one of them "no" unless it unanimously concludes that the mitigating evidence does not call for a lesser penalty. A second alternative might have the jury answer a fourth, constitutionally-required question after the three statutory ones: After considering all the mitigating evidence, does the jury still unanimously conclude that the prisoner should be put to death, rather than spared? But the majority has offered no suggestion or language that would be consistent both with the statute and with the constitutional requirements.
It is true, as the majority doubtless recognizes, that to give the statute some construction such as the ones I have described probably would require that the sentence in this case be vacated and the matter be remanded for resentencing. That appears to me to be a small price to pay for establishing a set of statutory and constitutional directives to permit trial courts in the future to conduct constitutionally adequate sentencing proceedings that would avoid future case-by-case evaluations as to which piece of evidence satisfied which statutory and/or constitutional criteria. If the people of this state are to receive reliable enforcement of the death penalty, they deserve to have this aspect of the statutory scheme fully explored and its constitutional limitations declared now.
The jury instructions pertinent to the three statutory questions and the role of mitigating evidence were so brief that they may be set out here in full:
Even under the majority's construction of the pertinent constitutional requirements, these instructions were deficient. The jury was specifically instructed only that it could consider mitigating circumstances with respect to the second question. That is not the law. As the discussion in part I of this dissent shows, the jury must be given far greater latitude in its use of mitigating circumstances. This jury was affirmatively misled as to its authority under the constitution. No sentence of death should be permitted to stand upon jury instructions so woefully inaccurate and incomplete. This defendant has not been accorded a sentencing trial even approaching that required by the Lockett/Eddings/Skipper/Dugger line of cases.
The majority might argue that, even if my understanding of the constitutional requirements is correct and my criticism of the instructions given to this jury well taken, the evidence in this case is so one-sided and overwhelming that any error committed would be harmless. For the reasons that follow, I do not think that "harmless error" satisfactorily disposes of this case.
In the first place, the concept of "harmlessness" is difficult to quantify in the context of Oregon's first death penalty case. When all one knows is that the jury was never correctly advised as to the scope of its authority, any speculation with respect to how a properly instructed jury would have performed its new and difficult task becomes highly problematical.[3]
The second argument to be made is that there is evidence in this record of mitigating circumstances which, however sparse, should have generated appropriate instructions. The evidence shows that this defendant began difficulties with the law at *1210 an early age, displayed evidence of mental instability through most of his life, at least twice attempted suicide, may have felt required to turn to violent behavior as a response to institutional settings in which he found himself because of early criminal activity, has made some significant efforts to become and remain employed, has significant artistic ability, is of above average intelligence and is still relatively young. I do not mean to suggest that, were I trying this case, I would find any of the foregoing considerations (whether viewed individually or collectively) as overcoming the state's evidence with respect to each of the three questions or as independent justification for a reprieve from the death penalty. That decision is not my function. It is, instead, the function of an appropriately-instructed jury under the Oregon statutory scheme. No such jury has considered this evidence. One should do so. A second, appropriately-instructed jury might reach the same conclusion as did the jury in this case. However, then and only then will constitutional rules have been observed and any subsequent execution be entitled to that degree of respect which any such profound action should receive in a nation of laws.
For all of the reasons expressed in this dissenting opinion, I believe that the defendant's sentencing proceeding was constitutionally infirm. Accordingly, I would vacate the sentence of death and remand the case to the trial court for a new sentencing hearing or, at the election of the district attorney, for entry of a new sentence of life imprisonment. Because the majority reaches a contrary conclusion, I respectfully dissent.
One further point seems to me to be worth making. No one familiar with the degree of conscientious effort applied to this case by every member of this Court could fairly question the sincerity of the views expressed by each of the opinions in this case or by those who adhere to those opinions. However, the fact that judges of reasonable intelligence and integrity can have reached such diametrically opposed views with respect to an issue as crucial as the role mitigating circumstances constitutionally are required to play in sentencing proceedings under statutes like Oregon's demonstrates how desirable it is that the Supreme Court of the United States accept review of this or some similar case. The good faith disagreement that exists in this Court is no small matter; human lives are quite literally at stake. I would hope that that Court, newly blessed with a full complement of justices, would perceive that there is yet work to be done in this area of constitutional law and would set about to complete that work forthwith.
I respectfully dissent.
LINDE, J., joins in this dissenting opinion.
[1] All ORS (Oregon Revised Statutes) citations in this opinion are to the statutes prior to amendment by the 1987 legislature. The case was tried in the circuit court and briefed and argued in this court with reference to the statutes as they existed prior to 1987 amendment. The reader is warned that there are changes, but they do not have any effect on this decision.
[2] Although the text of the statute is susceptible to the interpretation that review by the Supreme Court is not mandated, no one has argued that review is not mandatory, and the rule that this court has promulgated assumes that review is mandatory. See ORAP 18.05 entitled "AUTOMATIC REVIEW IN DEATH SENTENCE CASES." ORS 163.150(6) comes from Oregon Laws 1985, chapter 3, section 3(6), which was proposed as Ballot Measure 7, by initiative petition, was enacted by a vote of 893,818 to 295,988 at the general election on November 6, 1984, and became effective December 6, 1984.
[3] ORS 163.115 provides that criminal homicide constitutes murder when it is committed intentionally or in the commission or attempted commission of certain felonies. This section also provides the penalties that may be imposed for murder; death is not one of those penalties.
[4] ORS 163.105 provides that aggravated murder is to be punished by death or life imprisonment.
[5] A copy of the petition follows this opinion as Appendix A. The petition is on a printed form with certain additional material supplied by printing with a pen.
[6] When one convicted of aggravated murder is not sentenced to death, the sentence is life imprisonment with "a minimum of 30 years without possibility of parole, release or work release or any form of temporary leave or employment at a forest or work camp." ORS 163.105(1).
[7] There is no longer a crime of "first degree murder" in this state.
[8] It may be technically correct that defendant was uncounseled, but as discussed in part I of this opinion, defendant had the advice of lawyers at that stage of the proceedings. It should be noted that defendant's motion was not only that he be allowed to represent himself but that two lawyers be appointed as "co-counsels." Moreover, if a plea of guilty is forbidden by Article I, section 11, of the Oregon Constitution, it would not matter whether defendant was counseled.
[9] The "Official Revision Comment" to Article 557 is as follows:
"(a) This article retains from Art. 262 of the 1928 Code of Criminal Procedure the prohibition against receiving a plea of guilty in a capital case. Accord: N.J. Stat. Ann. § 2A:113-3; N.Y.Code of Crim.Proc., § 332. Const. (1921) Art. VII, § 42 authorizes district courts to receive pleas of guilty only in cases less than capital.
"(b) The case of State v. Green, 221 La. 713, 60 So. 2d 208 (1952), stated that the fact that the court could not accept an unqualified plea of guilty in a capital case did not mean that the court was required to accept a qualified plea of guilty without capital punishment. Under this article the defendant's plea of `guilty without capital punishment' is authorized, with consent of the district attorney, in which case it must be accepted by the court. This conforms to the procedure when a defendant pleads guilty to a lesser included offense. See Art. 558."
[10] In the past we have consulted newspaper editorial comments to seek contemporary understanding of a ballot measure. See, e.g., LaGrande/Astoria v. PERB, 284 Or. 173, 182, 586 P.2d 765 (1978).
[11] The state has argued cogently that this defendant did not plead guilty to a capital charge but only to a potential capital charge because a jury must still be impaneled for the sentencing proceeding under ORS 163.150(1), and it is entirely possible that the jury may not answer all three questions affirmatively as has occurred already in Oregon under ORS 163.150(2) in other cases of conviction for aggravated murder.
A defendant who is determined not to contest the issue of guilt could accomplish his purpose quite easily even were we to hold that Article I, section 11, of the Oregon Constitution prohibits the making or acceptance of a plea of guilty. The defendant could go to trial and as a witness testify that he had done each and every material act charged in the accusatory instrument. Theoretically, the jury could yet find him not guilty, but that result would be exceedingly improbable.
[12] In the case at bar, the trial court instructed the jury on the meaning of the word "deliberately" as used in ORS 163.150(2)(a) as follows:
"The word `deliberately' in this case means the act of mind which examines and considers whether a contemplated act should or should not be done. One acts deliberately when one acts in such a cool mental state, under such circumstances, and for such a period of time as to permit a careful weighing of the proposed decision. The law, however, does not prescribe a particular period of time for deliberation."
[13] "Probability" in other than the mathematical sense is defined in Webster's New International Dictionary (2d ed 1961):
"1. Quality or state of being probable; reasonable ground for presuming; true, real, or likely to occur; likelihood; more narrowly, a conclusion that is not proof but follows logically from such evidence as is available; as, reports devoid of all probability; to establish probability of guilt.
"But their notions of probability were radically different from ours. J.A. Froude.
"2. That which is or appears probable; something probably true or real, or likely to happen; as, his visit is a probability; daily flights are within the probabilities."
[14] Both dissenting judges opined that the vagueness which they found inherent in the statutory text invalidated the statute under due process clause of the Fourteenth Amendment of the Constitution of the United States. The Supreme Court of the United States disagreed. Jurek v. Texas, 428 U.S. 262, 96 S. Ct. 2950, 49 L. Ed. 2d 929 (1976).
[15] Defendant also quotes at some length from State v. David, 468 So. 2d 1126 (La 1984), in which the court held that the aggravating factor that defendant has "a significant prior history of criminal activity" was too vague to satisfy the constitution. Whether we would agree or would disagree with that court is beside the point, for that is not the phrase with which we deal under the Oregon statute.
[16] In Bales v. SAIF, 294 Or. 224, 235, 656 P.2d 300 (1982), we set forth a footnote that is also pertinent here:
"The medical truth of yesterday may well be the laughing stock of today; today's medical truth may be likewise treated tomorrow. History teaches us that the vast majority of doctors 100 years ago, both in practice and in the universities and hospitals, believed Dr. Ignaz Phillipp Semmelweis not only to be wrong, but probably not completely sane, simply because he insisted that a doctor ought to wash his hands with a watery solution of chloride of lime before delivering a baby if the doctor had just been dissecting a cadaver or engaged in some other activity that had caused the doctor's hands to become unclean. Semmelweis' observations of the high incidence of puerperal fever in mothers whose babies were delivered with the assistance of doctors whose hands and clothing were unclean led him to believe there was a causal connection between the lack of cleanliness and the ensuing fever. See, e.g., `Immortal Magyar' by Frank G. Slaughter, M.D., 1950. The work of Joseph Lister was eventually to explain why Semmelweis was right, but he was right even when he was a minority of little more than one. In any field of science, today's truth may tomorrow be shown to be false. Consider the history of the views of planetary revolution. Were Johannes Keppler and Galileo, on the one hand, or those who believed the sun revolved around the earth, on the other hand, correct? Who were in the majority, and who in the minority, in that time?"
[17] We have quite recently spoken to predictability of "dangerous" criminal activity. See State v. Huntley, 302 Or. 418, 429-431, 730 P.2d 1234 (1986). Some of the literature there identified is pertinent here.
[18] Although it is not pivotal, we note that Article I, section 20, of the Oregon Constitution, like Article I, section 10, is a general provision, while Article I, section 40 is a special provision.
[19] The Supreme Court of the United States has granted a writ of certiorari in Franklin v. Lynaugh, ___ U.S. ___, 108 S. Ct. 221, 98 L. Ed. 2d 180 (1987). We understand the issue on which the writ was granted is "whether the jury must be instructed on the effect of mitigating evidence under the Texas capital punishment scheme." The answer to that question cannot affect Oregon's scheme, for ORS 163.150(1)(b)(B), as we here construe it, requires such instruction.
[20] In his dissent, Justice Gillette seems to ignore the text we have just emphasized.
[21] This section was amended in 1974 to raise the sum of $20 to $200.
[22] See L. 1864; General Laws of Oregon, ch. 1, § 6 (Deady 1845-1864); Hill's Anno.Laws § 1205; 1 Codes and Statutes of Oregon, ch. II, § 1233 (Bellinger and Cotton 1902), and compare ORS 131.005(6): "`Criminal action' means an action at law by means of which a person is accused and tried for the commission of an offense."
[23] We quote from the state's brief the following summary, which we find to be supported by the transcript:
"He challenged juror Sullivan on the grounds that Sullivan would believe an officer's testimony over that of other witnesses. * * * Defendant later exercised a peremptory challenge to remove Sullivan. * * * When juror Milligan revealed that he was awaiting a probation violation hearing for failing to complete sexual abuse counseling, defendant requested and was granted a recess to confer with his legal advisors. * * * Defendant and the state agreed the juror should be excused for cause, and he was. * * * After initially passing juror Almen for cause, defendant challenged him because he knew and would tend to believe witnesses for the state. * * * The state did not oppose defendant's challenge, and the juror was excused. * * * Defendant also challenged for cause alternate juror Sweat, because of his hearing problem. Again the state did not oppose the challenge, and the juror was excused. * * * Defendant challenged juror Abraham for cause, on the grounds that the juror could not be fair because the juror's brother had been murdered. The court granted defendant's challenge. * * * Defendant first passed juror Atkinson for cause, then challenged him on grounds the juror's wrestling coach commitments would interfere with his attention to the case. The court denied the challenge, and defendant challenged the juror peremptorily."
[24] Defendant did not challenge Watson for cause; defendant did not exercise an unused peremptory challenge to remove Watson from deliberation of defendant's fate. For whatever reason he may have then had, defendant did not believe he should exclude or attempt to exclude Watson from the jury. Had the court done so, sua sponte, as defendant now contends the court should have, and had the jury, with Watson not in place, have returned a verdict mandating the death penalty, would defendant not now be arguing that the court erred in excluding Watson from the jury?
[25] We do not approve the content of the last sentence.
[26] The assault on the child is what led to the prosecution in which the victim was to be a witness. Defendant's killing of the victim, qua witness, was what made his murder of her aggravated murder.
[27] In his dissent, Justice Linde states: "defendant was allowed to pursue a course that prevented the lawyers who were appointed to `advise' him from making an effective challenge to the state's proof of aggravated murder." We find nothing in the record to show what challenge defendant's advisers would have made had defendant not pleaded guilty, let alone that it would have been an "effective" challenge. 305 Or at 194-195, 752 P2d 1185.
Justice Linde chides us for our short treatment of Skinner v. Oklahoma, 316 U.S. 535, 62 S. Ct. 1110, 86 L. Ed. 1655 (1942). 305 Or. at 214, 752 P.2d 1196. The footnote is not ours but that of the Supreme Court of the United States found in San Antonio School District v. Rodriguez, 411 U.S. 1, 33-34, 93 S. Ct. 1278, 1297, 36 L. Ed. 2d 16, 43-44 (1973). That Court's footnote explains that the statute struck down in Skinner implicated a right implicitly found in the Constitution of the United States. The "right to life" is not to be found there.
In footnote 8, 305 Or. at 215, 752 P.2d 1197, Justice Linde notes the possibility that there is tension between the initiative process by which the people can directly enact legislation and the Constitution of the United States requiring that a republican form of government be maintained. U.S. Const. Art. IV, § 4. This is not before us.
[1] See ORS 167.320, which makes criminal "animal abuse" by seriously injuring or cruelly killing an animal.
[2] The trial judge told the jury:
"The second question is:
"Is there a probability that Jeffrey Scott Wagner would commit criminal acts of violence that would constitute a continuing threat to society? In deciding the second question, probability means the occurrence of an event is more likely than not to occur. Here the event is the chance of the defendant committing criminal acts of violence. Probability does not mean that the occurrence of the event is certain.
"In determining this issue you shall consider any mitigating circumstances received in evidence including, but not limited to, the defendant's age, the extent and severity of the defendant's prior criminal conduct and the extent of the mental and emotional pressure under which the defendant was acting at the time the killing was committed."
[3] The Court said in Tison:
"The heart of the retribution rationale is that a criminal sentence must be directly related to the personal culpability of the criminal offender. While the States generally have wide discretion in deciding how much retribution to exact in a given case, the death penalty, `unique in its severity and irrevocability,' Gregg v. Georgia, 428 US 153, 187 [96 S. Ct. 2909, 2931, 49 L. Ed. 2d 859] (1976), requires the State to inquire into the relevant facets of `the character and record of the individual offender.' Woodson v. North Carolina, 428 US 280, 304 [96 S. Ct. 2978, 2991, 49 L. Ed. 2d 944] (1976). Thus in Enmund's case, `the focus [had to] be on his culpability, not on that of those who committed the robbery and shot the victims, for we insist on "individualized consideration as a constitutional requirement in imposing the death sentence."' Enmund v. Florida, 458 US [782] at 798 [102 S. Ct. 3368, at 3377, 73 L. Ed. 2d 1140 (1982)] (quoting Lockett v. Ohio, 438 US 586, 605 [98 S. Ct. 2954, 2965, 57 L. Ed. 2d 973] (1978) (emphasis in original)."
481 U.S. at ___, 107 S. Ct. at 1683, 95 L. Ed. 2d at 139.
[4] The Chadd court wrote:
"The Attorney General in effect stands Faretta on its head: from the defendant's conceded right to `make a defense' in `an adversary criminal trial,' the Attorney General attempts to infer a defendant's right to make no such defense and to have no such trial, even when his life is at stake. But in capital cases, as noted above, the state has a strong interest in reducing the risk of mistaken judgments. Nothing in Faretta, either expressly or impliedly, deprives the state of the right to conclude that the danger of erroneously imposing a death sentence outweighs the minor infringement of the right of self-representation resulting when defendant's right to plead guilty in capital cases is subjected to the requirement of his counsel's consent. It is significant that the Attorney General is unable to cite any authority, either federal or state, that holds to the contrary."
People v. Chadd, 28 Cal. 3d 739, 751, 621 P.2d 837, 844, 170 Cal. Rptr. 798, 805 (1981) (emphasis in original, footnotes omitted).
[5] Courtroom style was more colorful a century ago. The district attorney argued, in part:
"`Gentlemen, this case is now with you. The people will not be deceived; they cannot be deceived; they know where the right is, and you know where the right is, too. Your know the element [sic] that are to day contesting in this court for supremacy. You know that on the one hand is law and order, and on the other hand is riot and bloodshed and disorder. You know that those two things are trying to gain the supremacy in this county. You know that one or the other will rule. If Charles Olds is allowed to go forth with your verdict registered one iota less than charged in this indictment; if it is said of him that he did not commit deliberate and premeditated murder, the shout will go forth to Spokane, the shout will go forth to these various places that Multnomah county juries will not convict gamblers, when they are clearly proven to be guilty; that Multnomah county juries will not do their duty in this regard, but that they will shirk it.'"
State v. Olds, 19 Or. at 435-36, 24 P. at 404.
In invalidating the submission of a "victim impact statement" in a death sentence proceeding, the United States Supreme Court rejected the state's argument that the personal characteristics of the victim and the impact on their family were relevant "circumstances." Booth v. Maryland, ___ US ___, 107 S. Ct. 2529, 96 L. Ed. 2d 440 (1987). The Court wrote:
"The focus of a VIS, however, is not on the defendant, but on the character and reputation of the victim and the effect on his family.
"* * *
"Nor is there any justification for permitting such a decision to turn on the perception that the victim was a sterling member of the community rather than someone of questionable character.[8]"
___ U.S. at ___, 107 S. Ct. at 2534, 96 L. Ed. 2d at 449-50. The footnote added:
"[8] We are troubled by the implication that defendants whose victims were assets to their community are more deserving of punishment than those whose victims are perceived to be less worthy. Of course, our system of justice does not tolerate such distinctions."
Id. (citation omitted).
[6] Article I, section 20 of the Constitution of Oregon states:
"No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens."
[7] In our decentralized system of criminal justice, a particular prosecutor's decision to seek the death penalty may be unequally affected by its extraordinary costs in addition to plea bargaining considerations such as a defendant's willingness to plead guilty or to testify against accomplices, even intangibles like the relationship of the victim or the defendant to the community, not to mention turnover in the offices of prosecutor and of governor. See New York Times, November 27, 1986 at A1, col. 1, December 9, 1986 at A27, col. 1, December 23, 1986 at A17 col. 1 (reporting on the commutation by outgoing Governor Anaya of all New Mexico death sentences and the pledge by the incoming governor and other state officials to challenge that action).
Although five years ago, Florida's Supreme Court reportedly was spending one-third of its time on death cases, review only of prosecutions that result in a death sentence cannot assure equal treatment with other cases that do not. See Sherrill, Death Row on Trial, New York Times, November 13, 1983, at sec. 6, p. 80, col.
1. As Justice England wrote,
"individuals in Florida may well be executed for crimes similar to those committed by others who have been spared the death penalty. Disparities in sentencing will occur despite all the rhetoric about death being different and the courts exercising special scrutiny to prevent arbitrariness simply to preserve overriding societal needs."
Witt v. State, 387 So. 2d 922, 932 (Fla. 1980) (England, J., concurring). To prepare comparisons of prosecutions of similar offenders committing similar crimes, of whom some are selected for the death penalty and others are not, is possible if sufficiently uniform and detailed records are developed for all potentially eligible prosecutions but probably is beyond the resources of any defendant or of the state Public Defender; yet it is needed. That burden should rest on the Department of Justice, not on a defendant.
[8] Another question that has not been briefed is whether a plebiscite that bypasses the legislature and the governor in order to repeal parts of the Bill of Rights and to impose a penal regime which is morally repugnant to a substantial minority of citizens remains compatible with the state's obligation to maintain a republican form of government, U.S. Const. Art. IV, § 4, as well as with the original purposes of amended Or. Const. Art. IV, § 1. An initiative measure not only short-circuits the hearings, study, debate and adjustments made in the normal legislative process, see OEA v. Phillips, 302 Or. 87, 106-07, 727 P.2d 602 (1986) (Linde, J., concurring), it replaces a representative body's resistance to overriding intensely felt minority concerns with a purely majoritarian plebiscite. The question whether republicanism limits this process dropped from sight for lack of judicial opinions after the United States Supreme Court held it beyond the reach of the federal courts in its more generalized form, i.e., whether the existence of a nonrepublican feature would make the entire state government illegitimate, Pacific Telephone Co. v. Oregon, 223 U.S. 118, 32 S. Ct. 224, 56 L. Ed. 377 (1912) (challenge to a license tax enacted by an initiative measure).
This did not relieve state courts of responsibility under their state constitutions and the Supremacy Clause, U.S. Const., Art. VI, to determine whether their governments had acted by institutions or processes that remained "republican" within the meaning of the Guarantee Clause, as this court did in Kiernan v. Portland, 57 Or. 454, 111 P. 379, reh. den., 57 Or. 454, 112 P. 402 (1910) and Kadderly v. Portland, 44 Or. 118, 74 P. 710, reh. den., 44 Or. 118, 75 P. 222 (1903). See also Van Sickle v. Shanahan, 212 Kan. 426, 511 P.2d 223 (1973); Kohler v. Tugwell, 292 F. Supp. 978, 985 (ED La 1968) (Wisdom, J., concurring); see generally, Tribe, American Constitutional Law 98-100 (2d ed. 1987); Heaton, The Guarantee Clause: A Role for the Courts, 16 Cumb.L.Rev. 477 (1985-8); Bonfield, The Guarantee Clause of Article IV, Section 4: A Study in Constitutional Desuetude, 46 Minn.L.Rev. 513 (1962); Wiecek, The Guarantee Clause of the U.S. Constitution (1972).
[9] A report of the Legislative Fiscal Office following State v. Quinn, supra, estimated that this fairly typical capital case would have cost almost $250,000 in counsel costs alone (in 1980-81 dollars), even assuming that all appeals beyond this court were denied. That does not include all other costs of trial and execution, which greatly increase the total cost.
[10] See Kaplan, Death in the USA, 10 Nat'l L.J. 1, 31 (February 15, 1988).
[1] As the material that follows demonstrates, there were such cases, including one involving the Texas statute, Adams v. Texas, 448 U.S. 38, 100 S. Ct. 2521, 65 L. Ed. 2d 581 (1980).
[2] The majority's reliance on certain language from Lowenfield v. Phelps, (305 Or. at 165, 752 P.2d at 1168) is untenable. That case had nothing to do with the role of mitigating circumstances. The Court in Lowenfield specifically said it was faced with two issues only: "[w]hether a sentence of death may validly rest upon a single aggravating circumstance that is a necessary element of the underlying offense of first-degree murder, and whether the judge had coerced the sentence verdicts from the jury." ___ U.S. at ___, 108 S. Ct. at 550, 98 L. Ed. 2d 568 (1988).
[3] No objection was made to any instructions in this case. Normally, I would regard that as disposing of any concern with respect to the instructions. However, the posture of the present proceedings as the first death penalty case to be tried under the new statutory scheme seems to me to call for us to exercise the widest latitude in defining what a court should instruct the jury and seeing to it that no person goes to his or her death unless a jury was adequately instructed. The dignity of any human life, even that which a state legitimately determines that it is entitled to end, deserves at least this degree of formality and rectitude. | 300302c5be04389841be3d84b1f24904e45f795f8820c09302b91d01c8bafced | 1988-02-26T00:00:00Z |
58ac5e73-ad4d-4700-8be9-d927aa186a0b | Lafferty v. Newbry | 200 Or. 685, 268 P.2d 589 | null | oregon | Oregon Supreme Court | Peremptory writ ordered March 30, 1954.
*686 A.W. Lafferty, in propria persona, of Portland, argued the cause and filed a brief for petitioner.
E.G. Foxley, Deputy Attorney General, of Salem, argued the cause for respondent. With him on the brief was Robert Y. Thornton, Attorney General, of Salem.
PEREMPTORY WRIT ORDERED.
LATOURETTE, C.J.
Petitioner A.W. Lafferty, candidate for Congress from the Third Congressional District, Multnomah county, submitted to the respondent Secretary of State material for insertion in the voters' pamphlet accompanied by the necessary fees. That official refused to accept the proffered material, whereupon petitioner filed mandamus in this court to compel him to do so.
The material submitted by petitioner was a map of western Oregon wherein was included in black squares the Oregon and California railroad revested lands, accompanied by the wording: "To Save O & C Vote for Me! A.W. Lafferty. Each Black Square is 640 Acres. 2.5 Million Acres O & C Worth Billions." This material was offered to be inserted on one page of the pamphlet. For the second page there was submitted *687 a picture of a statue of Sacajawea, with child on back, pointing to the map, with the accompanying wording: "Yonder is Oregon Sacajawea A Fit Mother For Her Own Child. Electors: To Save O & C Vote for Me! truly yours, A.W. Lafferty, Fenton Building, Portland 4, Oregon." It will be remembered that Sacajawea was the Indian woman who accompanied the Lewis and Clark Expedition as a guide and interpreter across the plains and over the mountains into Oregon in 1804-1806.
ORS 255.030 (1) provides:
ORS 255.040 provides as follows:
The law further provides that after such rejection the person submitting such statement may appeal to *688 a board of review, consisting of the governor, attorney general and superintendent of public instruction, the decision of which shall be final.
The decision of this case rests largely on the meaning of the word "statement." Throughout the act the words "statement" and "argument" are used interchangeably. We adopt the definition of "statement" as submitted by the attorney general, representing the respondent, taken from Webster's New International Dictionary, 2d ed, Unabridged, as follows:
1. This definition is broad and includes the act of presenting matter on paper, whether in words, pictures, or drawings for the purpose of carrying home to the voters the message of the candidate. It is not limited to words alone as is contended for by the attorney general. It is well known that often, even in this court, attorneys, in making their opening statements and arguments, indulge in the use of illustrations as a part of the same. One need go no further than the opinions of this court to find maps, pictures and drawings included in the statement of the case.
2. In the past the secretary of state has interpreted the law as authorizing one seeking office to insert in the voters' pamphlet maps and pictures. It is axiomatic that the construction a department places on a law over a period of time, although not conclusive, is persuasive on the courts. For instance, as far back as 1913, there was contained in the voters' pamphlet, with reference to a bill to provide funds for repairs to certain buildings at the University of Oregon, pictures of various buildings on the campus of the university, some of which were not included within the bill itself. *689 In the voters' pamphlet of 1914, there were included pictures of buildings and grounds of the Southern Oregon State Normal School and Eastern Oregon State Normal School in an attempt to persuade the voters to levy taxes for the construction, support and maintenance of such institutions. In the voters' pamphlet of 1917 there was inserted a map of the state of Oregon pointing out the several roads and highways designated in a bill to raise money under a bonding act for the construction of such roads. In 1952, petitioner, who was then running for Congress, submitted the identical map of western Oregon, now in controversy, to the Secretary of State for publication in the voters' pamphlet, which was then accepted by said officer.
It might be argued that there is justification for the use of pictures and maps in the voters' pamphlet where measures are to be voted on rather than candidates since the initiative statute refers to "arguments" rather than "statements." However, as hereinbefore pointed out, the pamphlet law concerning candidates employs the words "statements" and "arguments" interchangeably, so that in reality there is no distinction between the two acts in the respects mentioned.
It is argued by the attorney general that the statute concerning "statements" is not free from doubt and depends upon construction and therefore the respondent has a discretion to determine the appropriateness of the submitted matter which cannot be controlled by mandamus. This suggested rule has no application to the case at bar.
3, 4. ORS 255.030 is free from doubt and no discretion, expressed or implied, reposes in respondent. The only authority granted to the Secretary of State, so far as rejecting matter for the voters' pamphlet submitted by a candidate is concerned, is measured by the language, *690 "obscene, vulgar, profane," etc., set out in ORS 255.040 (1) aforesaid. Expressio unius est exclusio alterius.
By embracing respondent's theory the Secretary of State would be in a position to exercise a tremendous political power, not contemplated or envisaged by the legislature, as the only right of appeal under the statute is granted where the secretary of state rejects the submitted statement on the ground of obscenity, etc.
It is thus seen that to grant him the power claimed would leave a candidate without a remedy where rejection is based on grounds other than those mentioned in ORS 255.040 (1). He would have no right of appeal, nor would mandamus be available to him. If that public official were so minded and had discretion in the matter, he could put a stumbling block in the way of a candidate to satisfy his own personal purposes and perhaps that of his party, which would subvert the free flow of political discussion so zealously cherished and guarded by the American electorate.
5. This act should be liberally construed. What to a candidate might seem pertinent and germane might not seem so to the Secretary of State. The voters' pamphlet is the poor man's avenue to reach all the registered voters. A candidate who pays the requisite fees and does not offend the provisions of ORS 255.040 (1) should not be placed at the mercy or whims of a public official.
6. ORS 255.060 (3) designates the size of the pages of the pamphlets and of the type to be used. We do not intimate that, where the size of the printed matter submitted does not correspond with the size designated by the statute, the latter shall not control. This is merely a matter of mechanics and the Secretary of State must necessarily follow the statute.
*691 7. We hold that the statement submitted by the petitioner should be published in the voters' pamphlet, and a peremptory writ will issue directing respondent to act in conformity with this opinion.
ROSSMAN, J., specially concurring.
The photograph which Mr. Lafferty wishes to have included in his space in the Voters' Pamphlet is one of the statue of Sacajawea which stands in City Park, Portland. The statue as a work of art has won wide recognition. Obviously, there is nothing offensive about the picture. The candidate deems the picture material to the argument which he wishes to make to the voters. A proverb says that "One picture is worth a thousand words."
The sole objection to the publication of the picture that has been suggested is that the picture is not relevant to the arguments which the candidate offers in support of his candidacy. One of the dissenting opinions holds that the Secretary of State has discretion in determining the relevancy of material which is offered to him by candidates for publication in the Voters' Pamphlet and that he properly ruled that the photograph of the Sacajawea statue is irrelevant. That opinion says: "I am also of the opinion that the matter involved is not substantial or of sufficient importance * * *. The argument supporting petitioner's case was irrelevant and frivolous. * * * It is no more difficult for this court to determine `relevance' in this case than in any other legal controversy." No argument is needed to make one realize that if the Secretary of State can reject a map, photograph or drawing from the Voters' Pamphlet, under a belief that it is "irrelevant", he can do the same with the written statement which the candidate offers. The question thereupon *692 presents itself as to whether or not the legislature has entrusted the Secretary of State with power to review the arguments which candidates present for inclusion in the Voters' Pamphlet and to reject those which he deems irrelevant. In short, did the legislature, when it made provision for the Voters' Pamphlet, intend that the Secretary of State should have the power of censorship. In determining that issue, we must bear in mind that the Secretary of State holds a partisan, elective office. With no reference whatever to the present gentleman who is the incumbent of that high office, let us bear in mind that men who hold that office sometimes are politically ambitious. They are, and should be, partisans. Candidates of various political beliefs and the political parties themselves are entitled to space in the Voters' Pamphlet. Did the legislature intend that a partisan holding an elective political office should have the power of passing upon statements filed by candidates as well as by parties and of determining whether the statements or some picture that accompanied them are relevant to the arguments?
Up to this time no one has ever claimed that the Secretary of State can censor any material that is submitted to him for inclusion in the Voters' Pamphlet.
In determining whether or not the Secretary has power to censor material and reject that which he believes is irrelevant, we must give attention to the section of our laws which I will presently quote. The legislature, in making provision that obscene, vulgar, profane, scandalous, etc. matter should be excluded from the Voters' Pamphlet, did not entrust the exclusionary power to the Secretary of State alone. It made provision for a board of three to be the official arbiters. The board does not include the Secretary of State. Its membership contains the Superintendent of *693 Public Instruction, holder of one of the state's highest nonpartisan offices. Its membership also embraces the Governor and the Attorney General. When account is taken of the fact that the legislature included those three high officials in the board, one can reasonably infer that the legislature deemed that the power to exclude from the Voters' Pamphlet a statement presented by a candidate or a political party is a very great one. The following is the pertinent provision:
Manifestly, the power to exclude from the Voters' Pamphlet a statement upon a finding of irrelevancy is a greater one than to exclude something else under *694 a belief that it is vulgar, scandalous or libelous. Vulgar and profane matter, in all likelihood, will not advance a candidate's cause with the people, but material which a censoring official may deem irrelevant may, in effect, be a winning argument with the voters. Although it is claimed that the Secretary of State has the power to exclude material when he believes that it is irrelevant to the candidate's cause, there is not one word in the statute that so states or which defines relevancy. It is rare that an administrative official has a power which is not mentioned in the statute and which is nowhere defined. If the argument which has been advanced in behalf of the Secretary of State is warranted, then that official's power to exclude material from the Voters' Pamphlet which he deems irrelevant has been entrusted to the Secretary alone, whereas his exclusion of vulgar and defamatory matter is subject to review by a board composed of three of the state's highest officials. The disparity in treatment argues against the purported power.
Clearly, the value of the Voters' Pamphlet would be enhanced if everything included within its covers were relevant, but I cannot convince myself that the power to determine relevancy reposes in the Secretary of State. It is even more important that everything included in the Voters' Pamphlet should be truthful, but certainly no one will claim that the Secretary of State has the power of passing upon the truthfulness and correctness of material that is submitted.
The statement, "It is no more difficult for this court to determine `relevance' in this case than in any other legal controversy" is more plausible than sound. If this court takes upon itself the power to pass upon the relevancy of appeals made by candidates to the voters for their ballots, it will find itself enmeshed in *695 many difficult and embarrassing issues. Wisdom cautions that the court avoid issues of that kind. It is not equipped to render that kind of service to the electorate. The truth of the matter is that if we hold that the Secretary of State has the power to reject arguments which he believes are irrelevant and if, under a belief that a given statement presented for publication is irrelevant, he rejects it, it will be virtually impossible to secure judicial review of the Secretary's ruling. The only remedy that might possibly be available is mandamus. Yet mandamus can never be employed to control the exercise of judgment by a court, public official or administrative body.
Obviously, material included in the Voters' Pamphlet should be relevant if the candidates hope to win. But it is the voter alone who passes upon relevancy. The candidate's appeal is addressed to him. If the voter finds that a given candidate presents, in behalf of his candidacy, arguments that are irrelevant, they will be rejected and the candidate will be defeated. Upon that score the voter has the sole power of ruling. Without doubt, every issue of the Voters' Pamphlet through the years has contained scores of irrelevant arguments. It is far better that the voters rather than some censoring official rejected them.
I concur in the opinion of the Chief Justice. In so doing, I wish to make it clear that ORS 255.060 specifies the size and kind of type which must be used in the printing of the Voters' Pamphlet. In printing Mr. Lafferty's material, the Secretary of State will, of course, conform to that section of our laws.
TOOZE and PERRY, JJ., concur in this opinion.
BRAND, J., dissenting.
I dissent. Since the construction of the statute has an important bearing upon the exercise of the democratic *696 process by which candidates submit themselves to the decision of the electorate, and by which the voters are to be fairly and intelligently advised concerning the claims of those who seek office, I deem it necessary to set forth the reasons which militate against the majority opinion.
The law concerning the filing of statements by candidates at primary elections now appears as ORS 255.030 and ORS 255.040, et seq. The two sections above-specified were enacted by Oregon Laws 1945, chapter 50, as a single section, which, for convenience, has been divided by the revisers of ORS. As enacted and as now written, the controlling and relevant provisions are as follows:
*697 The words "portrait cut" as used, mean engravings of a "conventional photograph of a candidate's face, or face and bust, not over five years old." ORS 255.020. The provisions for the rejection by the Secretary of State of "any statement or other matter" because it is libelous, etc., is in the nature of a proviso. The right given the candidate is defined in the first portion of the section as enacted, which is now ORS 255.030, and the proviso is for the obvious purpose of limiting the right therein given.
In Mackenzie v. Douglas County, 81 Or 442, 449, 159 P 625, 159 P 1033, this court, after citing Black, Interpretation of Laws, § 107, said:
In State v. Young, 74 Or 399, 406, 145 P 647, this court said:
*698 Again we quote:
In the same case, at page 178, this court, by Justice HARRIS, said:
See also Meyers v. Pacific States Lumber Co., 122 Or 315, 259 P 203; Holman Transfer Co. v. City of Portland, 196 Or 551, 249 P2d 175, 250 P2d 929.
In the light of these decisions, it is apparent that the provisions for the rejection of the objectionable matter described in the statute, operate only to exclude portions of statements which would otherwise be within the purview of the provision granting the right to publish statements in the Voters' Pamphlet. Applying these rules, it appears that ORS 255.030 is the only portion of the statute which affirmatively gives to any candidate any right to publish anything in the Voters' Pamphlet. If the matter tendered for publication is a portrait cut, i.e., "his", the candidate's, portrait, or his statement "stating the reasons why he should be nominated", it becomes the duty of the Secretary of State to publish it, unless the statement "or other matter" filed comes within the exclusionary provisions of ORS 255.040. If the matter tendered does not come within the right granted in ORS 255.030, then there is no right to publish and the exclusionary provisions become immaterial. Beyond "peradventure of doubt", *699 the purpose of the provisions now found in ORS 255.040 is to exclude from the purview of the statute matters which would otherwise fall within it, and those exclusionary provisions are in the nature of provisos.
It has been suggested that the maxim "expressio unius est exclusio alterius" may be applied here with the result that any matter not within the express prohibition as libelous, obscene and the like, should be deemed to come within the provisions of the statute which grants the right to publish "statements" and this, regardless of the relevance of such matter to the candidacy of the person filing the statement. This argument is, in my opinion, unsound. The maxim in question is to be applied with caution, and merely as an auxiliary rule to determine the legislative intention. Scott v. Ford, 52 Or 288, 97 P 99; State of Oregon v. Standard Oil Co., 61 Or 438, 123 P 40; O'Neill v. Odd Fellows Home, 89 Or 382, 174 P 148; Cabell v. City of Cottage Grove, 170 Or 256, 130 P 1013. In none of these cases was the court dealing with the words in a proviso nor do they contain any support for the argument that the maxim should be applied as has been suggested. The essential fact is that we are dealing with exclusionary provisions limiting a right otherwise granted. If a statement and portrait cut were offered by the candidate "stating why he should be nominated" and coming clearly within the grant of right contained in ORS 255.030, and if then, an attempt were made to add a new classification to the statutory list which authorizes the Secretary of State to reject a tendered statement, then I would agree that the rule expressed by the Latin maxim would be applicable. Since the proviso had listed the objectionable statements requiring rejection by the Secretary, no others would be implied. Such *700 was the ruling of this court in Kruckman v. Smith, 126 Or 395, 398, 270 P 474, where the court said:
This, however, is not the situation in the case at bar.
After careful search, I have yet to find an Oregon case in which a proviso, enacted for the purpose of limiting a right granted by the same act, has been held to have enlarged the purview of the right which it purports to limit.
It has been suggested that the words "statement" and "argument" are used interchangeably. I disagree. If the petitioner is to prevail at all, he must bring himself within the purview of ORS 255.030 which alone affirmatively gives him any right to publish. The word "argument" is not to be found in that section nor in any other portion of the only law which governs primary election pamphlets, with the sole exception of one subparagraph. ORS 255.050 relates to the duties of the Secretary of State and state printer. Paragraph 3 of that section provides for printing, binding and distributing the pamphlets. By way of example only, and not as a grant of right, that section says: "For example, the statements and arguments of all candidates seeking republican votes * * * shall be bound * * *", etc., "but no * * * statement or argument * * * shall be included * * *", etc.
*701 An entirely different provision is made in the case of the general election pamphlet in which party candidates compete against candidates from other parties. There, the granting clause expressly empowers political parties to file "statements and arguments" for the success of its principles and election of its candidates. Again, the law concerning initiative and referendum pamphlets affirmatively authorizes "any argument advocating such measure" or "opposing the same."
The context within which the word "statement" is used in ORS 255.030 eliminates all doubt as to its meaning, regardless of its signification when used otherwise. The "statement" must be one "stating the reasons why he should be nominated." Even if it should be assumed that such a statement might contain argumentative matter, it must still be directed to the issue "why he should be nominated", and the question on the facts of the particular case will be whether the matter tendered is such a "statement" whether argumentative or not.
Attention has been called to the fact that on several occasions pictures and maps have been published in the initiative and referendum pamphlets as a part of authorized "arguments" for measures, and we are reminded that administrative construction "over a period of time "is considered persuasive, though not controlling. There have been a number of instances of this kind involving maps, but only when they were relevant to a proposed measure submitted to the voters. On the other hand, careful search discloses only one instance in which either a map or a picture (other than a portrait cut of the candidate) has been found in the statement of any candidate from 1902 to date. That one instance occurred in 1952 when the same person who is now before this court published a map of *702 Western Oregon in the Voters' Pamphlet along with his statement. Over many years no right such as has been twice claimed by the petitioner has been exercised or recognized, and a single exception is surely insufficient to establish administrative practice "over a period of time."
Our next question relates to the attempted employment of the writ of mandamus in this case. Mandamus is an extraordinary remedial process which is awarded, not as a matter of right, but in the exercise of a sound judicial discretion, and upon equitable principles. Buell v. Jefferson County Court, 175 Or 402, 152 P2d 578, 154 P2d 188; State ex rel. Willamette National Lumber Co. v. Circuit Court for Multnomah County, 187 Or 591, 211 P2d 994. A relator is not entitled to mandamus unless he has a clear legal right to the performance of a particular duty sought to be enforced and unless the defendant has a clear legal duty to do the thing he is called upon to do. State ex rel. Scott v. Dobson, 171 Or 492, 135 P2d 794, 137 P2d 825; State v. Malheur County Court, 46 Or 519, 81 P 368. To justify mandamus, the matter involved must be substantial and of sufficient importance, and the writ will issue only to prevent injustice or great injury. State ex rel. v. Hare, 78 Or 540, 153 P 790.
It remains only to apply the law to the facts. The petitioner has tendered $200 as payment for two pages of the Voters' Pamphlet. The first page, as described in the majority opinion, contains a map, apparently representing Western Oregon and containing many hundred black and white squares. The only printed matter on this page is in type of different sizes, the letters varying from small to some measuring five-eighths of an inch in height. The second page consists of a print, nearly four inches in height, which, *703 by a stretch of imagination, might be called a "portrait cut" of a statue which represents Sacajawea with a baby on her back and her right arm outstretched. On this page, types of varying size are employed. The cut of Sacajawea bears no possible resemblance to a conventional photograph of the candidate's face, or face and bust, nor is there any evidence that the photograph or bust is not over five years old. ORS 255.020. The matter thus tendered fails to qualify under the only statutory provision which authorizes any portrait cut. The only other provision of law authorizing the printing of any material at the instance of a candidate for nomination is the one permitting printed or typewritten statements "stating the reasons why he [the candidate (not Sacajawea)] should be nominated." The statements thus authorized are to be printed on the conditions set forth in ORS 255.030 to 255.070. ORS 255.040 contains the provisions for rejection of objectionable matter already mentioned. ORS 255.050 refers to "all such statements and portrait cuts" and describes the duties of the Secretary of State and state printer who is to print "this material in pamphlet form, printing the pictures of candidates with and as a part of their statements, where such portrait cuts are offered." (Italics mine.) ORS 255.060 provides that the printed matter in the pamphlets shall be set in eight point Roman face type, single leaded, a requirement with which the tendered material fails to comply. These are the only provisions relative to the issue.
In my opinion, no clear legal right to the performance of the particular duty sought to be enforced has been shown and no clear legal duty on the part of the Secretary of State to file a portrait cut of a statue of Sacajawea under the authority to file statements "stating the reason why he [the petitioner] should be nominated" *704 has been shown. I am also of the opinion that the matter involved is not substantial or of sufficient importance and that the issuance of the writ is not necessary to prevent injustice or great injury. The argument supporting petitioner's case was irrelevant and frivolous. The same conclusions should, I believe, be reached as to the printing of the map of Western Oregon, at least under the circumstances here shown. It seems too obvious for argument that neither the picture nor the map state the reasons why the petitioner should be nominated.
It is said that a right of appeal to an administrative body is given to any candidate whose statement has been rejected under the provisions of ORS 255.040 and no appeal is provided for the protection of one who files a statement which is excluded because not within the general purview of ORS 255.030. The decision of the majority in this case sufficiently establishes that such a person can have a judicial and more speedy remedy by mandamus if the court finds that the matter tendered should have been accepted. I agree that any refusal of the Secretary of State to publish a proper statement would authorize this court to take jurisdiction in mandamus and compel performance, if a clear duty were shown, which in this case appears to me to be conspicuously lacking.
In my opinion, the Secretary of State has no discretion to refuse any statement in writing which complies with the provisions of ORS 255.030 except as granted in ORS 255.040. Whether or not a statement presented for publication in the Voters' Pamphlet comes within the purview of ORS 255.030 is a question of law for judicial determination. There is no danger that any Secretary of State will be permitted to "subvert *705 the free flow of political discussion" so long as this court sits.
I cannot believe that the majority of the court would hold that the statute gives to the candidate the right to include in the Voters' Pamphlet a cut of the Tower of Babel or of the Taj Mahal, or of a movie actress. They would surely draw the line somewhere by requiring that the matter printed have relevance to the issue. To me it seems that the line should be drawn where the legislature drew it. It is no more difficult for this court to determine "relevance" in this case than in any other legal controversy. I see no more reason for holding that a statue of Sacajawea should be held to be a "statement" of the reasons why a candidate should be elected or a portrait cut of the candidate than there is for a similar ruling as to the picture of Pocahontas or of Marilyn Monroe. I am constrained to predict that this decision will lead to innovations and frivolities in the Voters' Pamphlet which will add nothing to the information of the voter or the dignity or fairness of the electoral process.
I hope it has been made clear in this dissent that I do not recognize any power of censorship in the Secretary of State authorizing him "to reject arguments which he believes irrelevant." If he should attempt to do so, the remedy is in this court. If the candidate submits his portrait cut and a statement, stating the reasons why he should be elected, no one would have any power to exclude the statement from the Voters' Pamphlet.
WARNER, A.C.J., and LUSK, J., join in this dissent.
LUSK, J. (dissenting).
I concur in the dissent of Mr. Justice BRAND. As his opinion demonstrates, the frequently abused *706 maxim, "The mention of one thing implies the exclusion of another", has been misapplied by the majority, with the result to be expected a complete distortion of the meaning of a very simple statute. There is a portion of the statute, however, to which the maxim may with all propriety be applied. That is the language of ORS 255.030, which states what a candidate may file for publication in the Voters' Pamphlet. When the legislature said that the candidate may file his portrait cut and printed or typewritten statement stating the reason why he should be nominated, it by implication excluded everything else. When it authorized the publication of the candidate's "portrait cut" it impliedly excluded every other cut, whether it be of a statue of Sacajawea or a map of western Oregon. This consideration alone should be determinative of the case.
The legislature was under no obligation, constitutional or otherwise, to provide for a Voters' Pamphlet. When it did so it had the power to determine the type of material that should be entitled to publication in the pamphlet. It had the right to charge the secretary of state with the duty of administration of the act, and it should go without saying that it is the secretary of state who must determine whether material offered to him for publication comes within the terms of the act. It would appear, however, that the majority entertains a different and novel notion about these matters, as witness the following excerpts from the opinion:
The rule of liberal construction was never intended to extend the grant of the legislative body, In re Frazier's Estate, 180 Or 232, 238, 177 P2d 254, 170 ALR 729; and that rule does not imply that the legislative mandate may be disregarded or that the words of the statute may be ignored or frittered away. 40 Am Jur 403, Statutes § 387. And no rule of construction can justify the majority's conclusion respecting the authority granted to the secretary of state by this statute. After stating expressly that that official has no authority to reject anything except material which must be excluded under ORS 255.040, it is said, "What to a candidate might seem pertinent and germane might not seem so to the Secretary of State." If this means anything, it means that the secretary of state must accept whatever the candidate submits to him for inclusion in the Pamphlet, and that, with the exception of material that is "obscene, vulgar, profane", etc. the candidate is the final judge of its fitness. Yet it is the secretary of state who is charged with the responsibility of administering the act. The legislature has imposed on him the duty of accepting for publication and publishing the portrait cuts of candidates and their statements giving the reasons why they should be nominated. The secretary of state cannot perform this duty without determining whether or not material submitted to him comes within the statutory *708 definition, and that involves the exercise of judgment. Of course, as the dissenting opinion of Mr. Justice BRAND shows, if the official should act arbitrarily or even erroneously, an injured candidate would have his remedy in the courts. But under the majority's opinion the people of the state of Oregon would have no remedy, short of repeal or amendment of the statute, as against the abuse of the privilege of the Voters' Pamphlet by candidates for office. Any statement, however foreign to the purpose or outlandish, any picture whether it be of Sacajawea or Mickey Mouse, would have to be accepted because it might seem "pertinent and germane" to the candidate, although not to the secretary of state. The majority seem to have forgotten that the Voters' Pamphlet is an official publication of the state of Oregon provided by law as an aid to the voters in the proper use of those new instruments of government, the direct primary and the initiative and referendum. It may or may not have been intended as "the poor man's avenue to reach all the registered voters" it is the rich man's avenue as well , but it is certainly not the private property of any candidate for office, rich or poor. And it is equally certain that the privilege which the state extends to candidates to advertise their candidacy through the pages of the Voters' Pamphlet is limited by law, and that no one is entitled to that privilege except to the extent and within the limitations expressed in the statute. This, at least, was so until the decision today rendered introduced anarchy into the statute.
I am authorized to say that WARNER, A.C.J., and BRAND, J., concur in the foregoing opinion. | 787dfa08c29046bb419435160a0324b2760072472cbf1840a88ab2c9ad2a4c08 | 1954-03-30T00:00:00Z |
8b771e7a-017a-46fb-a2bd-6d655bd4016c | State Ex Rel. Sorensen v. Baird | 201 Or. 240, 269 P.2d 535 | null | oregon | Oregon Supreme Court | Reversed April 21, 1954.
*241 Hugh B. Collins, of Medford, argued the cause for appellant. With him on the brief was Paul W. Haviland, of Medford.
Warren A. Woodruff, Deputy District Attorney, of Roseburg, argued the cause for respondent. With him *242 on the brief was Robert M. Stults, District Attorney, of Roseburg.
Before LATOURETTE, Chief Justice, and WARNER, LUSK and TOOZE, Justices.
REVERSED.
TOOZE, J.
This is an appeal from a judgment of the circuit court for Douglas county, dismissing a writ of habeas corpus. The proceeding was instituted by Shirley L. Sorensen, on behalf of her husband Charles L. Sorensen, as plaintiff, against C.H. Baird, as sheriff of Douglas county, Oregon, as defendant.
The petition for the writ alleged facts sufficient to authorize the issuance of the writ, and, by order of the court, the writ was issued on May 14, 1953, and served upon the defendant sheriff.
On May 15, 1953, the defendant filed his return to the writ, in which it is alleged (omitting formal parts):
Attached to the return were exhibits "A" and "B", being copies of what purported to be commitment orders as alleged in the return.
Plaintiff demurred to the return on the ground that it did not state facts sufficient to constitute cause or justification for the prisoner's detention. The demurrer was overruled by the court, whereupon plaintiff filed a replication in which she denied each and every allegation of the return, excepting only paragraphs 1 and 2 thereof.
Upon the issues thus formed by the return of defendant and replication (answer) of plaintiff, a hearing was held by the court. In support of the return's allegations, defendant offered, and there were received in evidence, a copy of the journal of the district court, the original "ORDER REVOKING PROBATION", and a copy of each commitment order above referred to. No other evidence was offered or *246 received, except a transcript of the testimony given before the district court in connection with the purported revocation of probation. This testimony has no bearing whatever upon the issue now before the court.
The exemplification of the journal of said district court above referred to is in words and figures as follows:
It will be observed that upon the hearing, neither the original complaint upon which Charles L. Sorensen was prosecuted, nor secondary evidence thereof, was produced.
We will first dispose of one of defendant's contentions. He claims that the petition for the writ of habeas corpus fails to state facts sufficient to authorize the issuance of the writ.
1-4. The function of a petition for a writ of habeas corpus is to secure the issuance of the writ, and when that is issued, the petition has accomplished its purpose. Generally, the petition is not considered as part of the pleadings. Of course, there are cases where, upon stipulation of the parties, the petition is treated as the answer or traverse to the return to the writ, and, in such instances, it does form a part of the pleadings. However, ordinarily, upon the issuance of the writ, the petition becomes functus officio. The return to the writ is the principal pleading and corresponds to the complaint in civil actions. Strict rules of pleading are not usually applied to petitions for writs of habeas corpus, and often the writ is issued upon more *248 or less informal applications. In proper cases, it should never be denied upon mere technicalities of pleading. The petition in the instant case was amply sufficient to demand the issuance of the writ. Quinn v. Hanks, 192 Or 254, 268, 233 P2d 767; In re Davenport, 114 Or 650, 655, 236 P 758; 39 CJS 625, Habeas Corpus; § 80, p 651; § 88.
The authorities cited by defendant in support of his contention are not in point: Kelley v. Meyers, 124 Or 322, 263 P 903; Long v. Minto, 81 Or 281, 158 P 805; Garrison v. Malheur County Court, 54 Or 269, 101 P 900 (Writ of Review).
The rules respecting petitions for writs of review are different from those applying to petitions for writs of habeas corpus. Andrews v. City of Corvallis, 200 Or 632, 268 P2d 361.
5. Plaintiff urges that the trial court erred in overruling her demurrer to the return.
Section 1-904, OCLA (ORS 16.490) provides:
We are of the opinion that the return to the writ was sufficient under this statute and, hence, not vulnerable to demurrer. The trial court did not err in overruling the demurrer.
However, the decisive question in this case is whether the evidence offered upon the hearing was sufficient to show legal cause or justification for the detention of the prisoner by the defendant.
*249 6-8. The district court for Douglas county is a court of inferior and limited jurisdiction. It does not have exclusive jurisdiction in prosecutions for misdemeanors. Its jurisdiction in such criminal proceedings is concurrent with that of the circuit court. From its judgments in criminal actions, appeals may be taken to the circuit court. Nothing is presumed in favor of the judgment of a court of inferior or limited jurisdiction, as against a collateral attack, and jurisdictional facts must affirmatively appear either on the face of the record, or, according to some authorities, by evidence aliunde, except as to facts required to be spread on the record. Jurisdiction, as that term is used, means jurisdiction over the subject matter. Ashford v. Ashford, 201 Or 206, 249 P2d 968, 268 P2d 382; 49 CJS 841, Judgments, § 425 (3).
In Ferguson v. Byers, 40 Or 468, 472, 67 P 1115, 69 P 32, we said:
The complaint against the prisoner claimed to have been filed in the district court is not in evidence. We cannot determine, therefore, from the record before us whether such complaint, if one was filed, stated a crime or showed proper venue, so as to be able to say whether the district court actually had jurisdiction over the subject matter.
9. The allegations of defendant's return to the writ were directly controverted and challenged by plaintiff's replication. Under the express provisions of § 1-904, OCLA (ORS 16.490), supra, and in the light of such denials in the replication, defendant was "bound to *250 establish on the trial the facts conferring jurisdiction". He, therefore, was bound to prove the filing of a sufficient complaint against the prisoner, showing that the district court had jurisdiction of the subject matter of the criminal action.
The question now under consideration is fully answered and determined by our holding in Evans v. Marvin, 76 Or 540, 545, 148 P 1119, 148 P 1121. There Mr. Justice BURNETT, speaking for the court, said:
10. The order of the district court purporting to revoke probation can have no more effect than the original judgment itself. "The stream cannot rise above the spring."
11. The evidence is wholly insufficient to justify the detention of the prisoner, Charles L. Sorensen, either upon the charge of "furnishing a minor with alcoholic *251 liquor", or for "operating a motor vehicle upon a public highway in Douglas county, Oregon, when such motor vehicle was not equipped with a muffler in good working order."
The judgment is reversed, and this cause remanded with directions to sustain the writ of habeas corpus and discharge the prisoner, Charles L. Sorensen, from custody. | 8822aa143a13c2a25e857e3e83123a0f9d9c2e9252ddef99f742e89ffc0bdfda | 1954-04-21T00:00:00Z |
95cfd3a7-0890-4e9f-954b-c09b766650f1 | Phillips Screw Co. v. Givnan | 200 Or. 279, 265 P.2d 1084 | null | oregon | Oregon Supreme Court | Argued on petition for rehearing January 6, 1954.
Affirmed as modified April 29, 1953.
Former opinion adhered to January 27, 1954.
*280 Prescott W. Cookingham and Leo J. Hanley, of Portland, argued the cause for appellant. With them on *281 the brief were Buckhorn & Cheatham and Eric Haessler, of Portland.
McDannell Brown, of Portland, argued the cause and filed a brief for respondents.
AFFIRMED AS MODIFIED.
LATOURETTE, C.J.
This is an appeal from a decree vesting title to a certain patent in the defendants.
Plaintiff contends that while defendant James D. Givnan, a patent attorney, was employed by plaintiff to prepare, file and prosecute applications for patents to certain inventions relating to screws and screw drivers of various forms and for which said Givnan was paid thousands of dollars for such professional services, he, Givnan, on account of such confidential relationship, acquired confidential information relating to the business of plaintiff; that by reason of the information so gained said Givnan applied to the United States government for letters patent covering the invention aforesaid, based upon which a patent issued to said Givnan. It is further alleged that Givnan transferred certain rights to such patents to the defendant, Givnan Recessed Screw Company, with full knowledge on the part of said company of the aforesaid. Plaintiff in its prayer prayed that said defendants be declared and decreed to be trustees of said patent and that an injunction be issued restraining them from further operating under such patent.
Defendants joined issue by general denial and a separate defense in which it is alleged that after defendant James D. Givnan terminated his services with the plaintiff he carried on experimental work and "invented a new and improved type of recessed head *282 screw entirely distinct from the so-called Phillips screw or the cloverleaf screw or any other recessed head screw then or theretofore manufactured or invented," on which invention a patent issued.
Defendants further plead laches on the part of the plaintiff and that the plaintiff at all times recognized the ownership of the invention in James D. Givnan and has permitted him to expend substantial sums of money in the development of the invention and, therefore, is estopped from asserting any claim to Givnan's alleged invention or patents based thereon.
A trial was had, whereupon the court entered an interlocutory decree in favor of plaintiff with a further proviso that such decree would become permanent only in the event that within 30 days plaintiff paid to the defendant James D. Givnan "a sum of money which will bear the same ratio or proportion to Ten thousand Four hundred and Twenty-nine Dollars and twelve cents ($10,429.12) as said ownership in said patents shall bear to one-hundred per cent (100%)."
Plaintiff refused to pay any money to said defendant Givnan, whereupon the court entered a final decree reciting that plaintiff failed to make the payment as provided for in the interlocutory decree and decreed defendants to be the owners of the patents aforesaid. It is further provided in the decree that should the plaintiff appeal from the final decree and the decree should be affirmed plaintiff would still have 30 days from the date on which the mandate is entered within which to make the payments and to acquire title to the patent as aforesaid.
Defendants cross appeal from the portion of the decree allowing plaintiff 30 days to comply with the interlocutory decree if the decree should be affirmed on appeal.
*283 1. Since we try this case de novo on appeal, it will be necessary for us to go into the issues as made by the pleadings. There is no question that defendant Givnan was guilty of breach of trust in obtaining the patent for his own account since he occupied a confidential relation with the company as its patent attorney, and the invention leading up to his patent unquestionably took shape in his mind during the ten years he was acting for the company. However, in the state of the record, this does not necessarily mean that plaintiff is entitled to the relief claimed in its complaint. There remain the questions of laches and estoppel to be considered.
In the early part of the year 1944, the defendant Givnan severed his connection with the plaintiff company, and about that time he obtained the patent in question. Shortly thereafter, H.F. Phillips, on account of poor health, resigned, as an officer of the plaintiff corporation, although his son, Harry L. Phillips, remained with the company. Mr. Prescott Cookingham, attorney in the case, remained as general counsel for the plaintiff and became its secretary and vice-president. Mr. Cookingham, in the latter part of the year 1944, entered into negotiations with Givnan and the elderly Phillips, whereby the plaintiff corporation, in some unexplained way, was to acquire 51 percent interest in the Givnan patent, paying Givnan therefor the sum of $50,000. Written documents were prepared with the knowledge of Mr. Cookingham, reciting that Givnan was the owner of the patent in question. About that time Givnan's invention and patent were submitted to the American Screw Company, with whom the plaintiff had dealings, to determine whether or not the Givnan patent had any commercial value. Report *284 came back from the American Screw Company to the plaintiff that said patent had no value, whereupon negotiations with Givnan were dropped. Nothing further was done in regard to the matter by the plaintiff until March 24, 1949, when Mr. Cookingham wrote a letter to Mr. Givnan, the pertinent part of which follows:
2. While on the witness stand, Mr. Cookingham, in explaining the meaning of the sentence, "At that same time we understood that you were making no claim and had no intention of developing the project for your own account, and we therefore gave the matter no further thought," testified that the information concerning the above was obtained from Mr. H.L. Phillips. There is nothing in the record to indicate that Mr. Phillips was acting in behalf of Mr. Givnan when such statement was made, and, of course, he therefore would not be bound by the same.
During the intervening years between 1944 and 1949, Mr. Givnan organized the Givnan Recessed Screw Company, co-defendant, and it expended thousands of dollars in the development and exploitation of his invention and patent. During that time 37.8 per cent interest in the defendants' invention was sold to some 18 innocent purchasers.
Mrs. Rose Greer, one of the purchasers, testified that she had a conference with Mr. Cambern, president of the plaintiff company, which is detailed as follows:
Mr. James R. Stafford, who invested $2,500 in the Givnan invention, wrote to the Phillips Screw Company inquiring whether the Givnan screw had any merit as an investment. Mr. Stafford testified that a letter was written back to him, signed by Mr. Cambern, president of the company, stating that:
3, 4. The present lawsuit was prompted, in our opinion, by the success of the defendants in projecting their invention. Having abandoned any interest in defendants' patent on account of the adverse report of the American Screw Company in 1944, and having disavowed any interest in the same not only to defendants but to its investors, and having lulled the defendants into a sense of security over the years by its silence, to defendants' detriment and disadvantage, equity will not permit plaintiff at this late time to enjoy the fruits of defendants' endeavors, and plaintiff is therefore estopped to assert any claim in the subject-matter of this controversy and certainly is guilty of laches in failing to make any claim to the same over a period of some five years. Grand Prize Hydraulic Mines v. Boswell, 83 Or 1, 151 P 368, 162 P 1063; Sharkey v. Candiani, 48 Or 112, 85 P 219.
*287 In the case of Pure Oil Co. v. Hyman, 7 Cir, 95 F. P2d 22, it was held that the employer was estopped to assert a claim to a patent obtained by a former employee and was guilty of laches when it knew of his activities and asserted that the patent was of no value and that it was not interested and delayed a period of nine months before instituting action.
The portion of the decree permitting the plaintiff to pay to defendants the expenses incurred by defendants in case of affirmance in this court is of no effect, and is therefore set aside.
The decree will be affirmed, as modified.
WARNER, J., specially concurring.
I specially concur in the result and base my concurrence on the ground of laches rather than estoppel.
Thomas H. Tongue, III, of Portland, argued the cause for the petitioner. With him on the brief were Cookingham & Hanley and Buckhorn & Cheatham, of Portland.
McDannell Brown, of Portland, contra.
FORMER OPINION ADHERED TO.
LATOURETTE, C.J.
On rehearing it is asserted by plaintiff Phillips Screw Company that we were in error in holding that plaintiff was guilty of laches and estoppel. The alleged error is predicated in part on the following language we employed:
5. If Frank Phillips were the agent of defendant Givnan at the time the conversation took place it might be an excuse for the plaintiff's failure to exert its rights with reference to the Givnan invention. The agency relied upon, however, is refuted by the allegations of the complaint wherein it is alleged:
There are some discrepancies in the evidence on this phase of the case. However, the impelling evidence supporting the above allegation may be found in the transactions involving the attempted purchase of a 51 per cent of the interest in Givnan's invention by Henry Phillips prior to the discovery of the worthlessness of the invention. It is quite clear to us that Henry Phillips was acting in said transaction for the plaintiff. This is supported by Mr. Cookingham's letter to Mr. Givnan, the pertinent portion of which is as follows:
The money mentioned in the letter obviously refers to the purchase of the 51 per cent interest aforesaid. That portion of the letter stating that the investigation to determine the value of the patent was made while Givnan was in the employ of the plaintiff company is an erroneous statement of the facts as the evidence clearly indicates that the investigation was made after Givnan had terminated his relationship with the plaintiff. It therefore appears, not only from plaintiff's complaint but also from the evidence, that at the time in question Henry Phillips was the agent of plaintiff.
6. It is further argued that equitable defenses are not available in an equity suit to anyone guilty of a breach of trust. This, of course, is the general rule but there are exceptions, one of which is found in the authority relied upon by plaintiff, which is:
*290 Menendez v. Holt, 128 US 514, 32 L ed 526, 9 Sup Ct 143, the next case relied upon by plaintiff, likewise sustains the exception, full recognition being given to the general rule that estoppel will ordinarily not be a defense where a confidential relation exists, the exception being couched in the following language:
We have examined with care the other authorities cited. In our opinion they lend no help to a proper solution of this matter.
When plaintiff, on being apprised of the lack of merit in the invention by the American Screw Company and its patent attorney, disavowed any interest in the same, it impliedly acquiesced in the transaction and abandoned its claim. It would indeed be inequitable and unjust to permit the plaintiff, with full knowledge of the facts, after approximately five years' silence and after defendants had brought the invention to a profitable fruition, to enrich itself at the expense of defendants.
The former opinion will be adhered to.
BRAND, J., dissents. | 546544233ffee5d8f48c59db515afc12bc31eeaf39099a016a97ed111e14a237 | 1954-01-27T00:00:00Z |
93ff52f0-3d46-4171-9a4f-e9cdd69ad587 | State v. Krogness | 238 Or. 135, 388 P.2d 120 | null | oregon | Oregon Supreme Court | Affirmed December 31, 1963.
Petition for rehearing denied January 28, 1964.
Certiorari denied, June 26, 1964.
*137 Howard R. Lonergan, Portland, argued the cause for appellants. With him on the briefs were John H. Kottkamp, Pendleton, and A.I. Bernstein, Portland.
Richard G. Coursen, District Attorney, Pendleton, argued the cause and filed a brief for respondent.
Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, Justices.
Certiorari denied, U.S. Supreme Court June 26, 1964.
AFFIRMED.
GOODWIN, J.
Robert Krogness, Neil Hart and Thomas Russell were convicted of a burglary committed in Pendleton, Oregon. They appeal.
The only question before this court is whether certain evidence was illegally seized. The questioned exhibits are burglars' tools and the loot from the burglary. They were found in the automobile in which the three defendants were riding. The automobile was stopped for a traffic violation. The evidence was taken in a search which followed. Timely motion was made to suppress the evidence.
1. The state argues that the illegality, if any, of the seizure cannot be a ground for suppressing the *138 evidence in an Oregon court because the evidence was seized by police officers of the state of Washington. While this argument might have required discussion in former times (see State of Oregon v. Olsen, 212 Or 191, 317 P2d 938 (1957)), the fruits of illegal police conduct may no longer be used as evidence in state courts. Ker v. California, 374 US 23, 83 S Ct 1623, 10 L Ed2d 726 (1963); Mapp v. Ohio, 367 US 643, 81 S Ct 1684, 6 L Ed2d 1081, 84 ALR2d 933 (1961). Such evidence is inadmissible whether seized by Oregon officers or by police of another jurisdiction. Cf. Elkins v. United States, 364 US 206, 80 S Ct 1453, 4 L Ed2d 1669 (1960). If the evidence was the fruit of illegal government action, it was error not to suppress it. Wong Sun v. United States, 371 US 471, 83 S Ct 407, 9 L Ed2d 441 (1963).
2. There is no claim in this case that the officers had a search warrant. Without a warrant, there can be no search or seizure, except for such reasonable search as may be an incident of a lawful arrest. State v. Chinn, 231 Or 259, 373 P2d 392 (1962).
In order to decide whether the trial court properly received the challenged exhibits in evidence, it is necessary to examine in some detail the testimony concerning the arrest of the defendants. There was some conflict in the testimony, but there was evidence from which the trial court could have determined the facts to be substantially as follows:
Sergeant Frank Chase of the King County, Washington, sheriff's patrol observed an automobile pass through a marked school crosswalk at a speed of 36 miles per hour during school hours. The maximum speed permitted at that time and place was 20 miles per hour. RCWA 46.48.023. Officer Chase stopped the car. The driver got out of the stopped car and *139 walked back toward the police car. Officer Chase recognized the driver as Neil Hart and greeted him by name. (There was other evidence in the case to the effect that Hart had a police record known to Officer Chase and at least one minor conviction in Seattle.)
The officer immediately by radio informed his headquarters that he had stopped Hart and two other subjects for a traffic violation. Officer Chase told Hart to sit beside him in the police car. He asked Hart who his companions were. Officer Chase then left Hart sitting in the police car and approached Hart's car to verify the identities of Krogness and Russell. At that time, Officer Chase saw on the back seat of Hart's car a military-type rifle with a telescope sight. He did not know whether or not the weapon was loaded. There is no record that he inquired concerning the rifle.
3. About the time Officer Chase saw the rifle, other police cars arrived on the scene. Krogness and Russell were asked to get out of Hart's car and to sit in the other police cars. For all practical purposes, Krogness and Russell as well as Hart were under arrest from that moment, if they had not been before. See Henry v. United States, 361 US 98, 80 S Ct 168, 4 L Ed2d 134 (1959); and State v. Christensen, 151 Or 529, 533-534, 51 P2d 835 (1935), where it is said that the mere stopping of the motorist and placing him under the officer's direction constituted an arrest. See generally on the law of arrest, Remington, The Law Relating to "On the Street" Detention, Questioning and Frisking of Suspected Persons and Police Arrest Privileges in General, in Police Power and Individual Freedom 15-18 (Sowle ed 1962). Officer Chase asked Hart for the keys to the luggage compartment of the latter's *140 car. Hart complied. There is no serious claim that Hart did so voluntarily.
In the luggage compartment the officer found a sack which contained some 200 pounds of coins, mostly in rolls bearing the name of a Pendleton bank. He also observed certain tools. At this point, Officer Chase apparently yielded the initiative in the proceedings to Detective Ronald Moore, who had arrived on the scene. Officer Moore supervised the search of all three occupants of the Hart automobile. The officers found about $4,500 in money, coin and paper, including the rolled and loose coins in the luggage compartment. Two pistols also were found, concealed about the interior of the automobile.
Officer Chase said that detention pending bail is discretionary (RCWA 46.64.015), but is rarely used, even in connection with out-of-state motorists. (The Hart automobile carried Montana license plates.) All three defendants were willing and able to post bail. They were, however, taken to jail.
On cross examination Officer Chase explained why the other police cars were called:
Officer Chase, on direct examination, explained the arrest of Krogness and Russell as follows:
On cross examination he gave this account:
The trial court did not set forth specific findings of fact upon which its rulings were predictated. See State v. Chinn, supra, and Townsend v. Sain, 372 US 293, 83 S Ct 745, 9 L Ed2d 770 (1963). Adequate findings are useful whenever constitutional issues are raised. Here the trial court published a written opinion in ruling on the motion to suppress. The opinion can fairly be construed as a finding that the officer made a lawful arrest for a traffic violation and thereafter searched the automobile in the reasonable belief that there had been a recent violation of the Washington game laws.
Whether we take our standards from the federal Fourth Amendment (through the Fourteenth) or from our own constitution's Article I, § 9, both guarantee the people the right to be secure in their persons, houses, papers and effects. The basic principle is clear.
4. The principle has proved difficult of application. Because of the mobility of criminals and of their pursuers, and for other reasons, the search warrant is not commonly employed. See Einhorn, The Exclusionary Rule in Operation A Comparison of Illinois, California and Federal Law, 50 J Crim L, C & P S 144, 151 (1959). Accordingly, most searches that are challenged in court are those which have at least a colorable foundation in an arrest of some kind. Liquor law enforcement historically produced comprehensive searches as "incidents" of traffic arrests. See, e.g., *143 State v. Christensen, supra; Brinegar v. United States, 338 US 160, 69 S Ct 1302, 93 L Ed 1879 (1949); Husty v. United States, 282 US 694, 701, 51 S Ct 240, 75 L Ed 629, 74 ALR 1407 (1931); Carroll v. United States, 267 US 132, 149, 45 S Ct 280, 69 L Ed 543, 39 ALR 790 (1925); Marsh v. United States, 29 F2d 172 (2d Cir 1928). It may be questioned whether everything said in these cases would be given full effect today. If the arrest is illegal, then it can provide no legitimate foundation for a search. See People v. Mickelson, 30 Cal Reptr 18, 380 P2d 658 (1963).
Setting to one side cases like State v. Hoover, 219 Or 288, 347 P2d 69, 89 ALR2d 695 (1959), in which there is a lawful arrest for a felony or dangerous misdemeanor and the accompanying search produces evidence of other crimes, we have before us the more common situation in which a minor traffic violation has called the attention of the police to a felon who might otherwise have gone his way unmolested. See, e.g., People v. Lopez, 32 Cal Reptr 424, 384 P2d 16 (1963): arrest for traffic violation; superficial inspection of automobile revealed burglars' tools; arrest for burglary; further search turned up evidence eventually used in conviction of first-degree murder.
Officer Chase properly stopped Hart's automobile for a speeding violation. Given a legal arrest for a traffic violation, we have the preliminary question: What kind of a search is reasonable as an incident of a traffic arrest?
Certainly an officer may, and for his own safety should, approach every law violator with caution and circumspection. Collings, Toward Workable Rules of Search and Seizure An Amicus Curiae Brief, 50 Calif L Rev 421, 429 (1962). Professor Collings observes that "[s]carcely a month passes in California without *144 a news report of the murder of a police officer attempting to make a traffic or other arrest." In approaching a violator's automobile the officer clearly has the right to observe anything that would be in plain view and observable by passers by. The question becomes troublesome only when the officer, usually acting upon the kind of intuition that comes from a policeman's experience, sees something that causes him to investigate a particular violator with more care than is routinely employed in handing out summonses to housewives and commuters. Police officers are not constitutional lawyers, and they do their dangerous work in the light of facts as they reasonably appear during the episode to which courts later are free to apply hindsight. Clearly a superficial examination of the automobile is not only reasonable, but is good police practice.
5, 6. As a general rule, the search must be reasonably related to the offense which prompts the arrest. The search may not, therefore, involve the luggage and other interior compartments of the vehicle merely because there has been a traffic arrest. The following cases involved comprehensive searches that were not reasonably related to traffic arrests: State v. Michaels, 60 Wash2d 638, 374 P2d 989 (1962) (failure to signal for left turn; search produced gambling equipment); Elliott et ux v. State, 173 Tenn 203, 116 SW2d 1009 (1938) (reckless driving; search produced contraband liquor in trunk); Courington v. State, 74 So2d 652 (Fla 1954) (driving while drunk; intoxicating liquor found in trunk); People v. Gonzales, 356 Mich 247, 97 NW2d 16 (1959) (driving at night with only one headlight; concealable weapon found stuck in front seat.) Cf. The People v. Watkins, 19 Ill2d 11, 166 NE2d 433 (1960) (arrest for parking too far from curb; discovery of *145 "policy" paraphernalia upheld on other grounds); People v. Blodgett, 46 Cal2d 114, 293 P2d 57 (1956) (double-parking; marijuana found in seat cushions; arrest and search upheld because of "furtive" conduct).
The trial court properly concluded in the case at bar that the arrest for a traffic offense, of itself, provided no lawful occasion for a comprehensive search of the automobile. The court noted, however, that after the traffic arrest had been accomplished other facts came to light. The court found that these facts gave the police officer reason to believe that a game-law violation had been committed. The court then found that the officer had probable cause to make a search for evidence of such game-law violation. It is this finding of fact that controls this case.
7. Where the officer, without trespassing, sees contraband or other evidence reasonably causing him to believe that contraband is being transported or that some other crime is being committed in his presence, he may have probable cause to make an arrest for the newly discovered offense as well as for the traffic offense which initially brought the subject to the attention of the officer. In such a case, while there may be no distinct demarcation between the first and second arrests, there does exist, prior to any extensive search, a probable-cause foundation for an arrest for an offense more serious than a traffic violation. The officer then is justified in making such a search as may be commensurate with the gravity of the newly discovered situation. Probable cause to arrest for the more serious offense, when present, will answer constitutional objections to the rigor of the ensuing search. A fairly comprehensive search is a proper incident of an arrest for a game violation even though *146 its "incidentalness" may be one step removed from the original traffic offense.
The situation is somewhat analogous to that in which some minor offense becomes the opening wedge for an officer's discovery of a new crime. But this development must occur lawfully. Intervening probable cause to arrest for a serious offense, if it came about in a legitimate manner, can make legitimate a search that would have been unreasonable if undertaken as an "incident" of the traffic arrest alone. See People v. Lopez, supra. Under the peculiar circumstances of the Lopez case, the result perhaps could have been reached without the aid of the California rule that permits police officers in certain circumstances to "frisk" suspicious persons without probable cause to make any arrest. (The rationale of the California rule which calls short-term detention for questioning and "frisking" something less than an arrest may be found in People v. Mickelson, 30 Cal Reptr 18, 380 P2d 658 (1963).) The attempt to achieve a tolerable "middle ground" between freewheeling police oppression as an impossible choice on the one hand and the strict requirement of probable cause to arrest as a precondition of the right to search on the other hand is defended in Professor Collings' article cited supra.
8. It has been suggested that probable cause to search need not be the same as probable cause to arrest. We believe, however, that the spirit of the constitutional proscription against unreasonable searches requires the same degree of good-faith belief in the guilt of a suspect to justify a search of his person or of his effects as would be required to support his arrest or an application for a warrant to search his home. As a practical matter, it is difficult to explain how the police can search an individual without arresting him, *147 since any substantial detention without his consent would fit the definition of an arrest found in such criminal cases as State v. Christensen, 151 Or 529, supra, and such civil cases as Lukas v. J.C. Penney Co., 233 Or 345, 378 P2d 717 (1963). If there is sufficient cause, as a matter of law, to justify whatever arrest is necessary physically to make a search, then a reasonable search is a lawful incident of such an arrest. If there is not probable cause to arrest, there is no logical basis for saying that one may nevertheless be arrested on suspicion and detained long enough for the officers to search him to satisfy themselves that he is indeed as innocent as the law presumes him to be. We need not decide in this case the constitutionality of the game laws that purport to authorize certain searches of a kind that are not involved in the case at bar. Some of the seasonal and regional practices of game wardens may be covered by consent, express or implied, but such matters are not presented in the case of a roadside arrest admittedly made for traffic purposes.
9. In the case at bar, we must decide whether the trial court had before it any substantial evidence to support a finding that there was probable cause to believe contraband was present in the automobile. The factual question before the trial court was whether the police officer, on the facts he described, had a good-faith belief, as well as reasonable grounds to believe, that the three young men he had stopped were, in fact, returning from a poaching expedition. If there was evidence from which the trial court could have drawn the inference that was drawn, there is no need for us to speculate whether, upon the same record, this court necessarily would draw the same inferences. Where findings of fact have substantial support in the *148 evidence, this court ordinarily does not retry facts which may underlie trial court rulings on the admissibility of evidence.
10. Officer Chase was an ex-officio game warden. He said that when he saw the rifle he thought he might find evidence of a game violation. Under RCWA 77.12.090, if that statute is constitutional, an officer is authorized to "search without warrant, any conveyance, vehicle, game bag, game basket, * * * or other similar place which he has reason to believe contains evidence of violations of law or rules and regulations of the commission." We assume that in Washington "reason to believe" means "probable cause to believe." We do not deem it either necessary or proper to "declare" the quoted statute unconstitutional. We have a similar statute in Oregon. ORS 496.660. We leave open the question whether such a statute would be upheld if it were to be construed as permitting a search upon mere suspicion. We do not so construe the Washington statute. There must be probable cause to believe a given offense has been committed (transportation of contraband) before there can be a search for evidence of it. In Oregon, probable cause "has been defined as the existence of such circumstances which would lead a reasonably prudent man to believe in the guilt of the accused * * *." State v. Duffy et al., 135 Or 290, 301, 295 P 953 (1931). Compare State v. Leadbetter, 210 Wis 327, 246 NW 443 (1933), and State v. Johnson, 210 Wis 334, 246 NW 446 (1933).
Probable cause to believe that a vehicle is transporting contraband, and is therefore subject to search for such contraband, has been explained thus:
11, 12. The trial judge's implied finding that the officer acted upon probable cause to believe that contraband game animals or birds were being transported in the Hart automobile is sufficient to support the challenged ruling unless we can say as a matter of law that the finding is unsupported by substantial evidence. In other words, where there is conflicting evidence, all testimonial conflicts, choices of permissible inferences, and conclusions to be drawn therefrom, are resolved by the trial court's ruling, so long as it appears that the trial court employed constitutional standards in applying the law. See Stein v. New York, 346 US 156, 73 S Ct 1077, 97 L Ed 1522 (1953). The finding must not, however, be wholly lacking in support in the evidence. See Townsend v. Sain, 372 US 293, supra.
It is clear from the trial court's opinion that the trial court did apply correct constitutional standards. The court stated that the officer relied upon the presence of the rifle, equipped as it was with a telescope sight, together with the known petty-offense records and the behavior of the occupants of the automobile, in arriving at the belief that if he searched further, he would find proof of a game violation. The court observed the witnesses and heard their testimony. We cannot say, as a matter of law, that no reasonable man would have had probable cause to believe that the vehicle contained contraband game.
*150 When the whole of the testimony is read, the defendants point out, a contrary inference is also supportable by the evidence. One could believe that the police officers suspected that where Hart and Krogness, known to them to be petty hoodlums, and a third man, unknown to them, were together in an automobile, they were up to no good. It could be inferred also that the officers upon mere suspicion undertook an exploratory search and then found proof of a recent burglary. The defense argues that only when the search was challenged on constitutional grounds did it occur to the officers that there may have been some connection between the rifle which they had observed and a possible game violation. Whatever may be said for the defense argument, it ignores the fact that the trial judge believed the police officers, confused though they were, at times, on the witness stand.
We are not prepared to hold that the police may search an automobile for evidence of a game-law violation any time they observe a rifle in the vehicle. Any such rule would be easy to abuse. It would put the decision to search or not to search virtually within the uncontrolled discretion of the police. That is exactly what the Fourth Amendment was intended to prevent.
We do hold, however, that where a trial court, employing proper constitutional standards, finds as a matter of fact that the officer making the search acted upon facts that would create in a reasonable mind a belief that there was a game violation, then this court will not try the case de novo to see if some other interpretation of the facts can be supported.
13. Once the search for illegal game uncovered the implements and fruits of another crime, it was reasonable for the police officers to believe that an offense more serious than a game-law violation had been committed, *151 e.g., receiving and concealing stolen property, or burglary, or ex-convicts in possession of concealed weapons (pistols). The officers at that point were under no duty to release their prisoners until such time as an investigation would reveal exactly what place had been the victim of a burglary, or exactly whose property had been stolen.
Where a legal arrest is made for a traffic offense, and a lawful search based upon probable cause to believe there has been a game violation thereafter uncovers evidence of another crime, the evidence can lawfully be used to prove the crime thus discovered. See Church v. State, 206 Tenn 336, 333 SW2d 799 (1959); Goodwin v. State, 148 Tenn 682, 257 SW 79 (1923).
If an officer lawfully examines the trunk of an automobile and finds therein a bullet-riddled human body, the officer need not decide, on peril of voiding a future prosecution, whether to arrest the driver of the automobile for murder (ORS 163.010) or for transporting a body without a permit from the state board of health (ORS 432.340). It is reasonable for the officer in such a case to assume that a serious offense of some kind is being committed, or has been committed, and it is reasonable for him to seek to preserve the status quo until some reasonable questions have been answered. See Traynor, Mapp v. Ohio at Large in the Fifty States, 1962 Duke L J 319, 331 (1962).
Whether the Washington police officers later followed correct procedure in booking the prisoners at the jail is not a material question in this case. The search was legal when it was made. It is sufficient for the purposes of this case that the search was not unlawful. The articles seized were, accordingly, subject to seizure without a warrant. The fact that the *152 circumstances developed as they did to give the officers probable cause to believe crimes other than speeding were being committed did not make the original stopping of the car illegal. The original arrest was clearly in good faith, and was in no sense a pretext for an exploratory search.
All three defendants were equally caught up in the events that flowed from the original arrest of Hart. As there was nothing illegal about the arrest of Hart, nor in the search of his auto, we need not inquire into the irregularities, if any, that may have made the incidental detention of Krogness and Russell subject to some formal criticism.
The only other assignment of error contends that the jury, rather than the judge, should have passed upon the legality of the search. The question of probable cause to arrest and the reasonableness of the search which followed the arrest were properly decided by the court. Steele v. United States No. 2, 267 US 505, 511, 45 S Ct 417, 69 L Ed 761 (1925). The authorities cited by the defendants do not support their theory that those questions were for the jury.
Affirmed.
O'CONNELL, J., dissenting.
As in State v. Chinn, 231 Or 259, 373 P2d 402 (1962) again this court, finding a quite obviously guilty defendant, fashions the law of search and seizure to fit his conviction.
Even making the most generous concession to the prosecution in appraising the evidence of probable cause for the search, it is patent from the record that the search in this case was not made as an incident to an arrest for a violation of the game laws. It was necessary for the state to relate the search to the *153 game violation because there was no other basis for arguing that the search was incident to an arrest; it was not incident to the traffic violation nor to the crime for which defendant was ultimately convicted.
From the testimony in this case one gets the distinct impression that the police officers suspected that defendant and his cohorts had been involved in a more serious crime and that the search was made to find evidence of that crime. Chase knew Hart. Hart had a previous record. It was not unlikely that Chase's call to the other officers for assistance was prompted by his knowledge of Hart's previous record. Normally there would be no need to call for assistance if the only crime involved was a game violation.
Before looking at Chase's testimony, it should be noted that probable cause must be made out in the present case mainly from the fact that the defendant and his companion were near a hunting area; that a gun with a telescopic sight was in the car, and that the arresting officer knew that Hart had a previous record. It must be admitted that from these facts an inference can be drawn that defendant had violated the game laws. But the law of search is not satisfied simply by finding that an inference can be drawn. The state has no right to search unless the inference is strong enough to move from the level of suspicion to the level of probable cause. This is fundamentally a question of relevancy. The greater the number of possible inferences flowing from the facts, the less relevant is any one conclusion reached upon the basis of such facts. In the present case the probability that defendant used the gun to hunt illegally is weakened by the fact that the car was travelling away from a metropolitan area and not away from a hunting area. The only facts supporting the inference that defendants *154 may have violated the game laws were (1) that there was a hunting area nearby and (2) that the gun was equipped with a telescopic sight, and possibly (3) that defendant had a previous record which fact was known to the arresting officer. This is a weak structure of facts upon which to rest an inference that a game violation had occurred. At most, the circumstances are sufficient only to create suspicion.
The cases from other jurisdictions are not very helpful. What appears as mere suspicion to one court is probable cause to another. Generally the difference in point of view reflects the difference in the court's understanding of the meaning of the Fourth Amendment and its counterpart in state constitutions. If the constitutional proscription against search and seizure is regarded simply as the pronouncement of a tort principle protecting the citizen's right of privacy, the right to search can be extended to the broadest limits. The problem then becomes one of weighing the citizen's interest in being free from annoyance against the state's interest in the efficient administration of the criminal law. So viewed, the only limitation that needs to be placed upon the right to search is at the point where the resulting annoyance is more than the average person should be expected to bear as a part of the price to be paid in helping to enforce the criminal law.
But the Fourth Amendment is not just a shoddy piece of tort law. The prohibition against unreasonable search and seizure was incorporated into the constitution to fend against a danger which went to the very core of the structure of government; the danger of an ambitious executive using police action to suppress his opposition. The chaos in the law of search and seizure stems in part from the failure of the courts to see this larger purpose in the Fourth *155 Amendment. However, sometimes it is seen clearly, as in Mr. Justice Murphy's dissent in Harris v. United States, 331 US 145, 194, 67 S Ct 1098, 91 L Ed 1399 (1947):
As is pointed out in a note, Search and Seizure in the Supreme Court: Shadows on the Fourth Amendment, 28 U Chi L Rev 664, 700 (1961):
When the law of search and seizure is seen in this larger matrix the scope of permissible search is severely limited. The line between suspicion and probable cause is then drawn with an eye to the purpose of the Fourth Amendment, and not simply to the exigencies of police administration in the particular case.
The law prohibits a purely exploratory search. That is what we have in the present case.
Cases in other jurisdictions have held that probable cause was lacking where the facts more clearly pointed to the commission of a crime. State v. Johnson, 210 Wis 334, 246 NW 446 (1933) is such a case. There the defendant, a game warden, was charged with criminal *157 assault and battery upon one, Jossart, alleged to have been committed in connection with a search of Jossart's automobile. Defendant contended that he had probable cause to believe that Jossart and his companions were in possession of the carcass of a deer in violation of the law. The following facts were stipulated. The search occurred on an old logging road in unsettled territory, except for shacks of hunters and fishermen. Jossart and his companions were returning from the vicinity of a hunting camp. They were clad in hunting clothes. Defendant saw on the back seat of the car a rifle and a sack. He also noticed a "Christmas" tree which was off the floor, level with the seat "as though there was something under it." This made defendant "suspicious as to what might be under the tree." (210 Wis at 335, 246 NW at 446). Jossart had been previously convicted of the violation of the game laws. It was held that defendant did not have probable cause to believe that the complaining witnesses were violating the game laws. Chief Justice Rosenberry, speaking for the court, said:
Other illustrative cases are set out in the margin.[2]
Even if we were to accept the view that the facts in the case at bar were sufficient to create in an arresting officer a belief that the game laws had been violated, the tenor of officer Chase's testimony strongly suggests that the search was not made as an incident to a game violation. Chase recognized Hart and defendant Krogness. Apparently Chase knew that they had a previous record. He called on his car radio for assistance. Two or three cars came to his assistance. Finally at the scene of the arrest there were, in addition to Chase, detective Moore, detective Heller and his partner, officer McCole, a juvenile officer in the area, officer Langlois, officer Rose, and two patrolmen. All of these converged upon the scene of an arrest for a traffic violation or a possible game violation.
To get the full sense of the shallowness of the state's position in attempting to tie the search to the *159 game violation, it is necessary to read the entire testimony of officer Chase. I shall not set it out in full here by a few passages from the transcript will illustrate the strained effort to distill probable cause out of a fact situation very nearly dry of inference-making material. First as to the arrest, officer Chase gives the following explanation:
Officer Chase's explanation for the arrest of Krogness and Russell is interesting:
Chase's basis for making the search was explained as follows:
The foregoing testimony taken as a whole demonstrates to me that the police made an exploratory search and when called upon to justify it attempted to relate it to a violation which had not occurred to them at the time of the arrest.
I believe that the majority opinion is in error in another respect. It states:
According to the majority's analysis probable cause is a question of fact which is to be resolved by the trial judge as a trier of fact. This is erroneous. If there is no conflict in the evidence as to what occurred in making the search, the question of the existence of probable cause is for the court. If the evidence is in conflict there is, then, a mixed question of law and fact. The correct analysis is found in 4 Wharton's Criminal *166 Law and Procedure (Anderson ed) § 1545, p. 167 (1957):
In the present case the facts are not in dispute; the only question is whether the admitted facts add up to probable cause. That is purely a legal question which we have the responsibility of answering irrespective of the trial judge's view of the matter. It is for us to set the standard for a valid search. That standard must be put at a level which will meet the constitutional guarantee against unreasonable search.
As I have already indicated, the majority and I do not agree where that standard should be set. But wherever it is set we and not the trial judge have the ultimate responsibility for setting it.
The evidence should have been suppressed. Defendants are entitled to a new trial.
[1] The comment continues:
"* * * Davis v. United States evoked similar warnings: `It is not only under Nazi rule that police excesses are inimical to freedom .... History bears testimony that by such disregard are the rights of liberty extinguished, heedlessly at first, then stealthily, and brazenly in the end.' [328 US 582, 597 (1946) (Frankfurter, J., dissenting)]. The latter passage might seem to suggest that the danger to be avoided is the slow erosion of all traditional liberties. If this were the crux of the problem the fourth amendment would not be properly viewed as a special `bar to such tyranny and oppression.' A careful reading of the passages indicates, however, a theory of unique relation between broad powers of search and seizure and the rise of a totalitarian state. Totalitarian regimes may be characterized, in part, by the types of offenses with which they are most concerned: sedition, heresy, unpopular thought, disapproved literature. These are all `victimless crimes,' or at least crimes of which the government is the only victim. Search and seizure procedures are uniquely suited perhaps indispensible to the detection of just such crimes. It is reasonable to suppose, therefore, that strict controls on the right of search and seizure would provide one hedge against the kind of oppressive law which only such procedures could make enforceable."
[2] The People v. DeLuca, 343 Ill 269, 175 NE 370 (1931) (officers in search of game violator boarded passenger train which the defendant was riding. The officers saw some feathers sticking out of defendant's pocket, searched his person and found four hen pheasants in his coat pockets. Held that the evidence was obtained by unlawful search); State v. Gibbs, 252 Wis 227, 31 NW2d 143 (1948) (prosecution for possession of shotgun shells loaded with ball or heavy shot. Defendant was wearing tight-fitting bibless overalls and game warden could see outline of shotgun shells in defendant's pockets. Defendant brought out shells from his right pocket, but refused to produce shells from his left pocket. Arrest and search held illegal.)
Cf., State v. Evans, 143 Or 603, 22 P2d 496 (1933); Hughes v. State, 195 Tenn 290, 259 SW2d 527 (1953); Phillips v. State, 159 Tex Cr 286, 263 SW2d 159 (1953); State v. Leadbetter, 210 Wis 327, 246 NW 443 (1933). | 45511eb4d4c34fe7f9a5a6f0f541d2507ec726279ae87dd8d75df1014cfad697 | 1963-12-31T00:00:00Z |
85a2a1fa-5dc5-4a64-9148-fbabc2364829 | Finley v. Prudential Life & Casualty Ins. Co. | 236 Or. 235, 388 P.2d 21 | null | oregon | Oregon Supreme Court | Reargued December 6, 1963.
Reversed in part; affirmed in part December 31, 1963.
*237 John H. Horn, Roseburg, argued the cause for appellant. With him on the brief were Horn & Slocum, Roseburg.
Eldon F. Caley, Roseburg, argued the cause for respondent. With him on the brief were Long, Neuner, Dole & Caley, Roseburg.
Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, Justices.
REVERSED IN PART; AFFIRMED IN PART.
ROSSMAN, J.
This is an appeal by the plaintiff, Venice W. Finley, from a judgment of the Circuit Court which dismissed her complaint. The trial was without a jury.
Plaintiff is the widow of Jack V. Finley who died in Lakeview Hospital, Lakeview, Oregon, January 25, 1962. She instituted this action to recover under a "Hospitalization Sickness or Accidents Policy" issued by defendant to her husband as the insured. It named the plaintiff as beneficiary. The complaint alleges two causes of action under different provisions of the *238 policy. The portions of the policy material to her cause of action are:
The parties stipulated to most of the facts; those outside the stipulation are substantially undisputed. The defendant presented no evidence.
*239 The stipulated facts were presented to the circuit court by defendant's counsel. He began their recital in this manner:
We will now state facts that usher in the vital issue and will then resort to the stipulation.
The insured, Jack V. Finley, left Roseburg Thursday, January 18, 1962, in a motor truck for northern Nevada to pick up a caterpillar tractor. He was 56 years old and was accompanied by one Bob Flury, 19 years of age. Flury owned and drove the truck in which the two men rode. They found snow on the pavement before they reached Lakeview, but when they came to an area about 32 miles east of Adel, Oregon, which lies near the Nevada border, they encountered very low temperatures, a snow storm, and snow that drifted into embankments. We will now resort to the stipulation. It states that after the two men left Roseburg they "proceeded without incident until they came upon a dirt slide partly blocking the road about 32 miles east of the community of Adel in Lake County, Oregon." Since the "slide" is important, we interrupt the quotation for the purpose of noting that Flury explained that there actually was no dirt in the slide. He stated that the formation was called "a dirt slide" on account of the precipitous embankments through which the road passed. However, the snow at that place, its depth, the drifts, and the grade rendered it impossible for the truck to proceed. The stipulation continued:
It thus appears that the two men and their truck were in a lower area from which they could not escape. Both to the east (slide area) and to the west of them (Adel) lay higher ground, but their truck could not move up the snow covered grades in order to reach either of those areas.
We pause to observe, by way of resume, that on the night of Thursday, January 18, the slide area had rendered it impossible to drive the truck any further east. Likewise, on that evening the men could not turn *241 the truck around. Accordingly, the two stayed all night in the truck's cab with the motor running. The next morning, Friday, January 19, Flury succeeded in turning the truck around and thereupon headed it westward for Adel, but when he came upon an adverse grade snow rendered it impossible for him to proceed further west. He then turned around and again drove eastward toward the slide area. Again the snow rendered it impossible for his truck to proceed up the grade. Once more he turned the truck around and this time headed for the construction cabin that the two men had seen. They hoped to enter it and there escape from the severe cold until a rescue party by chance would find them. When they had reached a place about one and one-half miles from the cabin the truck became completely stalled by the snow. According to the testimony which was given by Flury and which is both unchallenged and uncontradicted, the two men decided, upon that crisis, to remain in the truck, keep the motor running, and await rescue.
Before long the misfortunes of the two men took a severe turn for the worse. The new misfortunes compelled the two men to abandon quickly their present plans and seek nothing less important than the saving of their lives if possible. The new juncture of events to which we just referred was the freezing of the truck's radiator and the disablement of its motor. The truck had ample fuel and the supply of the latter had no bearing upon the motor's cessation of operation. The hour when these disasters struck was 10:30 Saturday night. The temperature was about 54 degrees below zero. After those events occurred the truck provided no more warmth. It could no longer be occupied as a place of shelter, and as a means of transportation it was useless. The men were upon *242 their own. The breakdown of the truck withdrew all help from them. They were in a vast uninhabited area, and assistance would come to them only in the event a rescue party was organized.
Flury, who gave testimony that is uncontradicted, swore that he noticed that after the heater stopped operation the temperature in the truck's cab dropped materially and that the precipitation on the window froze. He added, "In fact, I started to go to sleep." At that point the two men decided that they must abandon the truck and make their way, if possible, to the cabin which was a mile and a half in the distance. The snow on the ground lay to a depth of eighteen inches. The temperature was unbelievably low. After the men had taken only a few steps, Mr. Finley was unable to proceed. Thereupon Flury put him upon his shoulders and started for the cabin. It took him two hours to make the journey. Finley was semiconscious when they reached the cabin.
The record warrants a belief that Finley had never contemplated that he would be cast into this area for an indefinite stay subject to intense cold and bereft of food, warmth, shelter, and transportation. Nor had he any premonition that he would find himself in a situation in which his life would be dependent upon the mercy of some rescue party. Since he had daily gone about his business, he had never thought that the depth of snow on the road and the arctic cold would render it necessary for a young man to carry him upon his back for one and one-half miles so that he could reach a cabin or otherwise freeze to death. All of these life-threatening disasters came upon the insured when the truck became disabled.
Flury found that the cabin contained no fuel, and he was compelled to pull material from the walls in *243 order to obtain fuel. The two men spent Saturday night, Sunday, and Monday until 4:00 p.m. in the cabin. At that hour they were rescued by a highway disaster truck. The two men had had nothing to eat from Thursday until after their rescue. Shortly after they reached the cabin, blisters began to form on Finley's hands and the latter hurt him. He had no feeling in his feet. Immediately after their rescue the two men were taken to the Lakeview Hospital where Flury was treated for minor frost-bite and released. Finley was given a thorough examination. The examining physician, Dr. Paul Kliewer, in response to written interrogatories, stated that Finley was suffering from severe frost-bite and that twenty-four to thirty-six hours after admission to the hospital he contracted acute broncho-pneumonia. He died in the evening of January 25, 1962.
The insured had a medical history of lung trouble. In 1956 he had half of one lung surgically removed. He had asthma, emphysema, bronchiectasis, and chronic bronchitis. Mrs. Finley (appellant) testified he carried an oxygen tank and mask with him to use when he had difficulty breathing.
Dr. Paul Kliewer responded to this written interrogatory which was read into the record:
The death certificate listed the immediate cause of death as "exposure" and noted acute broncho-pneumonia, emphysema, and chronic bronchitis as contributing causes of death.
1. The defendant (respondent) contends that Mrs. Finley lost her right to appeal through failing to object to the trial court's findings of fact. The defendant's contention fails on the authority of Ewauna Box Co. v. Weyerhaeuser Timber Co., 198 Or 360, 255 P2d 121, which said:
This case, like the Ewauna Box Co. case, requires only an application of law to the submitted facts.
Plaintiff's first assignment of error challenges the order which dismissed her first cause of action. The latter is for the recovery of hospitalization benefits under Part Two of the policy which is set forth in the second paragraph of this opinion. This provision of the policy affords benefits to the insured for necessary confinement in a hospital for "such injury." Not *245 every confinement in a hospital is compensable only confinement as a result of "such injury." The term, "such injury," is defined in Part One of the policy as "accidental bodily injury."
2. Whether an insured has suffered "accidental bodily injury," is ordinarily a fact question for the trier of fact, but in a case such as this where the facts are substantially undisputed, it becomes a question of law. Brady v. Oregon Lumber Co., 117 Or 188, 243 P 96.
3. The term "accidental bodily injury" in an insurance policy has assumed no technical legal meaning in the law. It is our duty to place upon the word "accident" its common meaning the meaning which a purchaser of a policy of accident insurance places upon that word when he buys a policy. Borglund v. World Ins. Co., 211 Or 175, 315 P2d 158; Stuart v. Occidental Life Ins. Co., 156 Or 522, 68 P2d 1037.
The defendant's (respondent's) brief states: "An accident denotes some sudden, unexpected happening which produces a hurtful result and is referable to a definite time and place. Chalfant v. Arens, 167 Or 659, 120 P2d 219, Iwanicki v. S.I.A.C., 104 Or 650, 665, 205 P 990."
This court, like many others, has held the word "accident" denotes an incident or occurrence that happened by chance, without design and contrary to intention and expectation. See Hutchison v. Aetna Life Ins. Co., 182 Or 639, 189 P2d 586; Buckles v. Continental Casualty Co., 197 Or 128, 251 P2d 476; LaBarge v. United Insurance Co., 209 Or 282, 303 P2d 498; Thompson v. General Insurance Co. of America, 226 Or 205, 359 P2d 1097.
4. This court is committed by Buckles v. Continental *246 Casualty Co., supra, to the rule which distinguishes between accidental means and accidental results from intended means. This rule, as thus adopted, was expressed in the following language in Caldwell v. Travelers Ins. Co., 305 Mo 619, 267 SW 907, 39 ALR 56:
See also Bertschinger v. N.Y. Life Ins. Co., 166 Or 307, 111 P2d 1016.
In National Life Insurance Co. v. Patrick, 28 Ohio App 267, 162 NE 680, the policy of insurance had this provision:
The coal wagon, containing two tons of coal, which the insured drove became stuck in a muddy street. The insured undertook to unload the coal. According to the decision, "there was a blizzard and the weather was cold." An hour and a half was required for the insured to unload the coal. When he had completed the work he noticed that the fingers of one of his hands were frozen stiff. Five days later all of the fingers and thumb of one hand were amputated and *247 parts of those of the other. In holding that the loss of the fingers was within the policy's terms of "external, violent, and accidental means," the court quoted the following from U.S. Mutual Accident Association v. Barry, 131 US 100, 9 S Ct 755, 33 L Ed 60:
From the decision we also quote the following:
In expressing its conclusion, the court stated:
In N.W. Commercial Travellers' Association v. The London Guarantee and Accident Co., 10 Manitoba *248 Reports 537, the insured lost his life in a manner substantially similar to that whereby death came to Finley in the case at bar. The insured, C.F. Church, was a commercial traveler who in November of 1892 was calling upon the trade in the Northwest Territories. He employed a wagon, containing his samples, and a driver. Church had been to a place entitled Black's Ranche and was returning to Macleod which was twenty miles distant when the wagon broke down. The hour was one p.m., and the temperature was 20 degrees below zero. Snow was falling; a strong wind was blowing; and it was difficult to detect the location of the road. When the wagon broke down, the driver suggested that the two mount horses and ride to Macleod. Church replied that he was unable to ride. He added that he was incapable of walking to Macleod and that therefore he would remain in the wagon. The driver agreed to ride a horse to Macleod and upon reaching that place send a rescue party for Church. By the time that he had reached Macleod and the rescue party had started, darkness had descended and the party lost its way. When a second rescue party came upon Church at about two o'clock the next morning they found him frozen to death.
The policy required the company to pay its amount upon receipt of "proof that the assured shall have sustained bodily injuries effected through external, violent and accidental means, within the intent and meaning of this contract."
Each of the three members of the court delivered an opinion. Justice Bain stated:
He added that in construing policies such as the one before the court:
Justice Dubuc declared:
*250 Justice Killam expressed his conclusion in the following significant language:
In Callahan v. Connecticut General Life Insurance Co., 357 Mo 187, 207 SW2d 279, the policy provided:
The insured, Callahan, and a friend had done some drinking and presently, while the two were at a tavern, Callahan departed alone presumably heading for his home. Shortly, he drove off of the side of the road and his car became mired in the soft ground of the highway ditch. He was unable to extricate the car and spent the night and part of the next day in it. The weather was cold and two to four inches of snow was upon the ground. When the insured was finally *251 rescued his feet were frozen and he developed tetanus. He died fourteen days later. The court held that those facts warranted the jury's verdict in favor of the plaintiff. The resulting judgment was affirmed. Had he not unintentionally, that is, accidently, got into the ditch, the cold would not have taken his life.
The policy in Wills v. Midland National Life Insurance Co., 108 Mont 536, 91 P2d 695, provided for double indemnity for death "in consequence of bodily injury effected solely through external, violent and accidental means." The insured, who lived in Butte, Montana, left his home by streetcar for the down-town section of the city where he attended a moving picture theater. When he left home the temperature was between zero and 10 below. Then a severe drop occurred and by the time the insured started for home about 11 p.m. snow was falling, a blizzard was raging, and the temperature was 40 degrees below zero. The insured undertook to return home by streetcar. The windows of the car in which he rode were frosted and he was unable to see the streets. Because of that situation he left the car about five blocks before reaching his proper street and was compelled to walk with the wind against him, and the temperature at 40 degrees below zero through deep snow upon unfamiliar streets. The next day his frozen body was found in the snow. The court held that the above facts justified a finding of accidental death through external, violent and accidental means. Quoting from United States Mutual Accident Assurance v. Barry, 131 US 100, 9 S Ct 755, 33 L Ed 60, which defined an accident as a "happening by chance; unexpectedly taking place," the court continued its quotation:
The insurance company in Commonwealth Casualty Company of Phila. v. Wheeler, 13 Ohio App 140, had issued a policy of accident insurance to C.Y. Wheeler which protected "from bodily injury sustained during the life of this policy solely through external, violent and accidental means." The policy also conditioned liability upon proof that the insured lost his life "solely from sunstroke, freezing or hydrophobia, due directly to `such injury.'"
After Wheeler had walked about two miles on his way home from his place of employment at a time when the temperature was about 20 degrees below zero he stopped at the home of his daughter and complained to her that portions of his face were frozen. While so doing he drew near a fire, sat in a chair and after conversing for about five minutes suddenly fell to the floor. A physician shortly pronounced him dead. The physician testified that Wheeler "was frozen to death from exposure." In sustaining liability under the policy the decision quoted from Pack v. Prudential Casualty Company, 170 Ky 47:
5. It is true that in the case at bar the insured, Finley, intended to drive upon this mountain road and could reasonably have expected to meet with cold and snow. We saw from the decisions of which we have taken note that exposure to the weather does not alone constitute accidental injury. The exposure must be by chance; it must be unintended, accidental and contrary to the plans of the insured.
6. It is clear that in this case Finley's exposure to the cold, while he was carried by Flury for a mile and a half through deep snow and at an extremely low temperature, was contrary to his intentions and plans. It happened accidentally when the truck became stalled in the snow and its mechanical parts became disabled. No one had foreseen a possibility that it would be necessary to abandon the truck and carry Finley for two hours through the extreme cold to the cabin. It was in the journey just mentioned that Finley incurred the frost-bite that took his life. The decisions previously reviewed indicate that it is entirely reasonable to deem the disablement of the truck within the connotation of the term "accidental." Thus, Finley was accidentally exposed to the severe cold that took his life. He certainly had never intended to impose upon his young friend, who had had nothing whatever to eat for two days, the arduous task of carrying him through deep snow at night time for a mile and a half.
The two men did not leave a place of shelter and *254 warmth to go out in the cold, but departed from a place where they were in imminent danger of freezing to make their way to relative safety. The fact just mentioned distinguishes this case from Brady v. Oregon Lumber Co., 117 Or 188, 243 P 96. Brady, an employee of Oregon Lumber Company, sustained frost-bite necessitating amputation of his right toes and lower left leg. The lumber camp had been closed for the season because of heavy snow and the foreman told the employees they would be returned to the valley by a company train. When the train failed to arrive that day the plaintiff and several others set out on foot. We denied plaintiff recovery inter alia because he left a place of safety and warmth and "willfully plunged into a situation that proved to be dangerous." The Brady opinion distinguished Schumaker v. St. Paul D.R. Co., 46 Minn 39, 48 NW 559. There the railway company had transported Shumaker to his place of work but where there was no food and no shelter. The weather was very cold. Under those conditions Schumaker walked to the nearest shelter and in so doing suffered injury by freezing during his journey. The Minnesota court allowed Schumaker to recover.
The injuries that Finley sustained and for which he was necessarily confined to the hospital were caused by his accidental exposure to the sub-zero temperature.
7. Plaintiff's first cause of action seeks recovery of $57.14 plus $150 attorney fees. This figure of $57.14 is equal to four-sevenths of the weekly hospitalization benefits payable under Part Two a of the policy. The weekly benefits, it will be recalled, were $100 for a maximum of fifty-two weeks. The record does not disclose exactly when the insured was admitted to the hospital, but the period of his confinement can fairly *255 be constructed from the facts in the record. The stipulation read into the record by counsel for defendant contains this statement:
Insured was rescued from the cabin about four o'clock in the afternoon of Monday, January 22. He was taken immediately to the hospital in Lakeview, a distance of about 45 miles. It is reasonable to assume he was admitted sometime in the afternoon of that day.
We hold the plaintiff is entitled to four days' confinement benefits equal to $57.14 plus $150 attorney fees on her first cause of action.
Plaintiff's second and third assignments of error challenge findings made by the trial court. These two assignments of error relate to Mrs. Finley's second cause of action for recovery under Part Three of the policy. The trial court found that plaintiff had failed to prove Mr. Finley was driving or riding within any automobile at the time he sustained accidental bodily injury or that Mr. Finley sustained accidental bodily injury resulting from the damaging of the truck.
8. Part Three of the insurance policy allows a recovery of $5,000 if the insured
The arguments of counsel reveal a disparity of opinion as to the coverage extended by this provision. The *256 duty of construing this clause in light of the facts of this case devolves upon this court. When construing an insurance contract we must construe it, within reason, most favorably to the insured and least favorably to the author of the policy. But we cannot by the device of judicial construction increase the coverage of the insured beyond the reasonable intendment of the parties. We cannot, in essence, write a contract of insurance for the parties.
9. The risk assumed by the insurance company in consideration of the premiums paid by insured can be determined in part by considering the policy in its entirety. The character of the policy is expressed in bold face lettering on the back cover of the policy and in the same words again in bold face type on the first page.[1] The only provision relating to compensation for accidental death is found in Part Three. This clause is entitled "Accidental Death Benefits" and the entire clause, though imperfectly expressed, is implicit with the requirement of accident precedent to recovery; that is, accidental damaging of the conveyance as well as accidental injury to the insured.
The requirement of accidental damage to the vehicle is not expressed in the provision (Part Three) but is fairly implied from the character of the policy and the express provision "such injury resulting from the damaging of said conveyance." "Such injury" is defined in Part One as "accidental bodily injury" and this definition applies throughout the policy. The compensable injury is accidental bodily injury resulting from the damaging of the conveyance; consequently, *257 if the damage to the vehicle is not accidental and the bodily injury results from this damaging, it is difficult to see how the bodily injury can be deemed accidental. In other words, if the bodily injuries are accidental, there must have been an intervening accidental means that caused the injury.
As indicated, the term "resulting from" demands a causal relationship between the damaging of the conveyance and the death of insured "directly and independently of all other causes" from the injuries. This question of proximate cause must be faced only in determining the relation between the damaging of the conveyance and the injuries of insured. Determination of the actual cause of death is controlled by the contract of insurance that provides that death must be caused "directly and independently of all other causes" by the accidental injuries. Consequently, assuming arguendo that death was so caused, the question still remains whether the accidental injury was proximately caused by the damaging of the conveyance.
This analysis requires first a determination of the meaning of "damaging of said conveyance." The plaintiff urges on our consideration the proposition that damage to the conveyance would include any disablement of the vehicle or reduction in its value. Specifically, she contends that when the truck was stalled in the snow and the radiator froze the vehicle was disabled and reduced in value and there was therefore a damaging of the conveyance. Appellant cites four cases from other jurisdictions in support of this proposition: North American Accident Ins. Co. v. McAlister, 290 Ky 88, 160 SW2d 385; Miller v. Inter-Ocean Casualty Co. (W. Va) 158 SE 706; Walden v. Auto Owners Safety Ins. Co., 228 Ark 983, 311 SW2d 780; Wright *258 v. Aetna Ins. Co., 10 F2d 281, 17 F2d 596, 46 ALR 225. None of those cases required the court to determine the meaning of damage to a motor vehicle. In North American Acc. Co. v. McAlister, supra, the policy insured against death resulting directly, independently and exclusively of all other causes from bodily injuries effected solely through external, violent and accidental means and sustained by the insured "in the wrecking or disablement" of any private automobile in which insured was riding.
The policy in Miller v. Inter-Ocean Casualty Co., supra, insured against:
We decline, in this instance, to equate "damaging" with "disablement." An automobile may in many instances be disabled or reduced in value without suffering any damage in the ordinary contemplation of that term. When a vehicle runs out of gasoline it is disabled, but one would rarely say it is damaged. Likewise, if a vehicle's progress is impeded by mud or snow, it is disabled and reduced in value but not necessarily damaged. The damage in these instances is not to the vehicle itself but to the purse of the owner. The word "damaging," as used in this policy, means a partial destruction of the conveyance by accident.
10. The insured and his companion became stalled in the snow on the roadway. The truck at this point was disabled; although the engine was running it could *259 not be disengaged from the snow. The two men remained in the truck with the engine running and the heater operating until the coolant in the radiator froze. This freezing of the cooling liquid caused the radiator to "boil over" and the engine to subsequently stop. There was disablement but no actual physical damage to the truck. The facts submitted in this case fail to sustain plaintiff's second cause of action under Part Three of the policy.
The judgment of the circuit court in the plaintiff's first cause of action is reversed and she is allowed recovery of $57.14 plus $150 attorney fees under Part One and Part Two a of the policy. The judgment in appellant's second cause of action is affirmed.
[1] "This policy provides benefits for loss of life from specified accidents and for other expenses resulting from accidental bodily injury and sickness, to the extent herein limited and provided and is renewable at the option of the company only." | 0d36b6b4c98e704e54d184b28c5f584b8811fdf6e9875e8bf29c8c5f8595f863 | 1963-12-31T00:00:00Z |
6eef5bbb-bbf4-47e0-a410-5bbe60014931 | Kleinschmidt v. MATTHIEU | 201 Or. 406, 269 P.2d 686 | null | oregon | Oregon Supreme Court | Reversed February 10, 1954.
Petition for rehearing denied June 2, 1954.
*407 Paul R. Harris, of Portland, argued the cause for appellant. With him on the brief was Henry Bauer, of Portland.
Robert F. Maguire, of Portland, argued the cause for respondents. On the brief were Stephen W. Matthieu and Maguire, Shields, Morrison & Bailey, of Portland.
REVERSED.
LATOURETTE, C.J.
The question posed is whether an action for libel lies against the estate of a testator whose will contains words libelous per se. The challenged language is:
The trial court ruled in the negative, sustaining the general demurrer to the complaint; hence the appeal. This question is of first impression in this court.
The rule that there is no such right of action is laid down in the following cases: Citizens' & Southern Nat. Bank v. Hendricks, (1933) 176 Ga 692, 168 SE 313, 87 ALR 230; Carver v. Morrow, (1948) 213 SC 199, 48 SE2d 814. Defendants also cite Nagle v. Nagle, *408 (1934) 316 Pa 507, 175 A 487. That such an action will lie is sustained by the following authorities: Harris v. Nashville Trust Co., (1914), 128 Tenn 573, 162 SW 584; Brown v. Mack, 56 NYS2d 910; Gallagher's Estate, 10 Pa Dist R 733; In re Draske's Will, 290 NYS 581.
In Citizen's etc. v. Hendricks, (1933) supra, the denial of libel was based principally on the maxim, Actio personalis moritur cum persona, (a personal action dies with a person), and, secondly, that there was no publication by the executor since he is an agency of the law to administer the estate and not the representative of the testator. In the Carver v. Morrow case, (1948), supra, the reasoning of the Georgia case was adhered to. It is difficult to determine from the Nagle case, supra, whether there was an absolute or a qualified privilege involved, although from the language used it would seem that the court was relying upon a qualified privilege. Further, the executors, in the performance of their duties, alleged the illegitimacy of the alleged heir rather than the testator.
In Harris v. Nashville Trust Co., (1914), supra, the maxim, Actio personalis moritur cum persona, so far as it relates to the question before us, is exploded. It is there pointed out that the tort for which liability attached was not committed during the lifetime of the testator, that publication of the will is the gravamen of the offense and that did not take place until after the demise of the libelant. It is there stated that the above maxim has been denounced by leading text writers and is not a favorite with the courts. Further, it is stated:
*410 1. It is argued that since an executor is the agent of the testator during his lifetime, the agency derived therefrom, not being coupled with an interest, dies with the death of the testator, and that in the probate of a will an executor is an officer of the court and his acts in probating the will are those of the court rather than of a testator; therefore there could be no publication of the same by an executor on behalf of a testator. According to 1 Restatement of the Law of Agency, p 7,
By no stretch of the imagination could the relationship between a testator and executor arising out of the execution of a will, during the lifetime of a testator, fit into the above pattern. We therefore conclude that a named executor in a will is not ordinarily the agent of the testator during the life of the latter, and, consequently, the alleged agency could not be interred with him.
2. Nor does the executor become an officer or agent of the court until he is appointed and letters testamentary are issued to him.
In Holladay v. Holladay, 16 Or 147, 149, 19 P 81, we said:
Again, in Huber v. Tazwell, 132 Or 122, 127, 283 P 745, we said:
3. It therefore appears that there is a hiatus between the testator's death and the court appointment of the executor. During this period when he, or the custodian of the will, files the same with the clerk, he is not acting for the court but necessarily for the deceased. When the testator executes his will he does the same with full knowledge that the same will be made public, and, although the executor or custodian in such instance is not what would strictly be called an agent under the common-law rule, yet he is an instrumentality through which the will is published, and when he does thus act he in effect publishes the will at the behest of the testator.
4. It is next contended that the publication of the will in the course of the proceedings in probate was and is absolutely privileged. This reasoning is fallacious in that the publication of the will, as we have held, antedates the probate thereof.
*412 In Brown v. Mack, supra, 56 NYS 910, 917, we read:
In the light of modern jurisprudence, we believe that the rule laid down in the Harris v. Nashville Trust Company case, supra, and others, is the most salutary one. We again quote from that decision:
Dean Prosser, in his valuable work on Torts, p 813, said:
We read the following in Harper on the Law of Torts:
This is a novel case and there are very few judicial utterances on the question. One line of cases misapplies an old principle of law which has been discredited by text writers and court decisions while the other adopts a rule that is "consonent with the trend of present-day judicial thinking and with modern conceptions of justice." Bedell v. Goulter, 199 Or 344, 261 P2d 842.
We call attention to the following language in Hinish v. Meier & Frank Co., 166 Or 482, 504, 113 P2d 438:
5. Since the law in Oregon has not been settled on the question before us and since § 10, article I of our constitution gives every man a remedy for injury done to his reputation, and since the question of a right to recover for libel by will had never arisen under the common law of England, Gatley on Libel and Slander (British) 1953 ed, p 414, we hold that an action will lie against a testator's estate for libelous matter contained in a will published after the death of a testator.
The court erred in sustaining the demurrer to the complaint. The judgment will be reversed. | 6337f40b03d29fe8fcc16c7ea13fb74090d2bec5760d01359cde5de7841c7350 | 1954-02-10T00:00:00Z |
df78b4b6-af2d-447f-a9b1-d25f05dbee1a | Hoyle v. Van Horn | 236 Or. 205, 387 P.2d 985 | null | oregon | Oregon Supreme Court | Affirmed December 24, 1963.
Eldon F. Caley, Roseburg, argued the cause for appellant. On the brief were Long, Neuner, Dole & Caley, Roseburg.
*206 Edward M. Murphy, Roseburg, argued the cause for respondent. With him on the brief were Yates & Murphy and Spencer W. Yates, Roseburg.
Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, Justices.
AFFIRMED.
SLOAN, J.
Plaintiff, a pedestrian, was injured when he was struck by defendant's truck. In this resulting action plaintiff was awarded a verdict and judgment. Defendant appeals. The appeal challenges rulings of the trial court in response to an effort of plaintiff's counsel, during argument to the jury, to suggest a "per diem" amount of damages for plaintiff's alleged pain and suffering. However, the assignments brought here are such that it is not possible to decide the propriety of the argument.
In his opening argument plaintiff's counsel stated:
Defense counsel objected immediately. The trial court sustained the objection and admonished the jury:
1, 2. Defendant's first assignment of error is directed at the court's admonition. Defendant had urged the court "* * * to instruct the jury to totally disregard any of [counsel's] remarks in any way connected therewith." We are told that it was error to refuse to give this instruction. It was defendant's duty to advise the court of the specific statements he objected to, an omnibus statement is not enough. Miller v. Lillard, 1961, 228 Or 202, 364 P2d 766. A part, at least, of plaintiff's argument was proper, by any standard. The court was not obliged to segregate that which defendant considered good from that which defendant considered improper.
When plaintiff's counsel resumed his argument he told the jury that the court's ruling precluded him from "* * * making a suggestion to you as to what this pain is worth per day." The record before us contains no further mention of the subject in the presence of the jury. Defendant, as a part of his objections to the $25 a day argument by plaintiff, had unsuccessfully moved for a mistrial. He later renewed the motion. The refusal of the trial court to order a mistrial has been assigned as error.
In support of the assignments defendant urges that we follow the case of Botta v. Brunner, 1958, 26 NJ 82, 138 A2d 713, 60 ALR2d 1331. The Botta case is the one most frequently referred to by the courts who refuse to allow the per diem argument. Ratner v. Arrington, Fla 1959, 111 So2d 82, is the case usually relied on by the courts who allow the per diem form of computation for damages. See the cases collated in the annotation at 60 ALR2d beginning at page 1347. *208 A case note at 15 Vanderbilt Law Review 1303, October 1962, compiles the more recent cases and the arguments pro and con. Because of the importance and difficulty of the question as well as the variables that have appeared in some of the cases (see for example, Pennsylvania Railroad Company v. McKinley, 288 F2d 262 (6th Cir 1961)), we think it unwise to attempt to decide the issue upon the oblique manner in which the questions have been presented in this case. Plaintiff, seemingly, was satisfied with the court's ruling and did not cross-appeal.
3. The essential issue to resolve in this case is whether the court erred in refusing to grant a mistrial. We cannot say that the trial judge abused his discretion, when he denied the motions. Guthrie v. Muller, 1958, 213 Or 436, 325 P2d 883. Assuming, but not deciding, that the argument was improper it cannot be held that the court's admonition went unheeded. Santoro v. Brooks, 1927, 121 Or 424, 432, 254 P 1019.
4. Other assignments complain that the court should have withdrawn from the jury's consideration an allegation in the complaint regarding violation of the basic rule. Plaintiff was struck when he was crossing a street at an intersection and while he was within a crosswalk. Immediately before the accident the driver of the defendant's vehicle had stopped at the opposite side of the intersection, as required by a traffic signal. The driver had started from the stopped position and had crossed the intersection when the plaintiff was hit. Testimony of eye witnesses could have caused the jury to find that the speed of the vehicle was significant. It was for the jury, not the court, to decide the extent to which speed contributed to the accident. The assignments lack merit.
Affirmed. | 559e0d5a3da4f8e9979ce83440d42301664c96b31dcd9269365db6e38b902a19 | 1963-12-24T00:00:00Z |
66c29cbf-8b8e-45fc-9a1d-c667ab825da0 | State of Oregon v. Vaughn | 200 Or. 275, 265 P.2d 249 | null | oregon | Oregon Supreme Court | Affirmed January 20, 1954.
Donald H. Joyce, of Portland, argued the cause and filed a brief for appellant.
J. Raymond Carskadon, Deputy District Attorney, of Portland, argued the cause for respondent. With him on the brief were John B. McCourt, District Attorney for Multnomah County, Charles E. Raymond and Charles W. Robison, Deputy District Attorneys, of Portland.
AFFIRMED.
*276 PERRY, J.
The defendant in this case was convicted of assault while armed with a dangerous weapon. The jury was duly instructed by the trial court and no exceptions to the instructions as given or to the refusal to give requested instructions were taken by the defendant. After the jury had retired, and during its deliberations, through the bailiff the jury addressed to the court two requests: (1) To have the word "feloniously" redefined, and (2) to have the testimony read as to when the defendant picked up the stick [dangerous weapon], before, after or during the dog fight. The trial court in answer to the request made the following statement:
The refusal of the court to redefine the word "feloniously" or to have read certain testimony pertaining to the time of the taking up of the alleged dangerous weapon, to which an exception was taken by the defendant, is assigned as error.
*277 1. The defendant contends that he had an absolute right to have the court redefine the word "feloniously" upon the request of the jury, relying upon § 5-313, OCLA, now ORS 17.325, which reads as follows:
It is to be noted that the mandatory obligation of the statute is that if any information as to the law is given by the trial court it shall be given in the presence of the attorneys or after due notice has been given to the parties or their attorneys. This statute does not in itself require the court to reinstruct a jury. It is, of course, necessary that the court state to the jury all matters of law which it thinks necessary for their information in giving their verdict. § 5-308, OCLA, now ORS 17.255. This was done by the trial court in its charge to the jury at the conclusion of the trial, and the word "feloniously" was defined in words as follows:
When the trial court has given to the jury an adequate instruction upon a specific issue in the case and thereafter the jury requests the court to "reinstruct" upon that issue, the giving of such further instruction rests in the sound discretion of the trial court. State v. Johnston, 221 Iowa 933, 267 NW 698.
The defendant does not point out wherein he was prejudiced by the trial court's refusal to redefine the word "feloniously", and we are unable to discover wherein he was prejudiced.
*278 2. The defendant also contends that as a matter of law he was entitled to have the request of the jury as to certain desired testimony read to them.
Some courts have held to the rule that error was committed by a trial court in permitting a portion of the testimony given at the trial to be read to a jury after a jury had retired to deliberate. Hersey v. Tully, 8 Colo App 110, 44 P 854; Padgitt v. Moll, 159 Mo 143, 60 SW 121, 52 LRA 854, 81 Am St Rep 347. The better rule, however, seems to be that whether in a particular case certain portions of the testimony should be read to a jury rests in the discretion of the trial court (Bannen v. State, 115 Wis 317, 91 NW 107; State v. Manning 75 Vt. 185, 54 A 181), and this state conforms to this rule. State v. Jennings, 131 Or 455, 282 P 560.
Thus by rule of law and not by statute the trial court is permitted in its discretion to grant a jury's request to have their recollection of the evidence refreshed, and the dereliction of a legal duty of the trial court in either event [the permitting or the refusing to permit information as to testimony already given] would arise only in case of abuse of legal discretion in either particular.
It is not pointed out to us by the defendant wherein the jury would be misled or confused by this action of the trial court to his prejudice. We have carefully read the transcript of the evidence, and it does not appear to us to have been material, or that it could have in any way affected a change in the verdict of the jury, whether the dangerous weapon was "picked up" before, during or after the dog fight started.
Finding no error, the cause must be affirmed. | 0d8179a2a7a6d30174e3808975821ad1a260f0b1100f5eb2b0636f3841299b56 | 1954-01-20T00:00:00Z |
f6be0bae-c013-4525-860b-161b037dbe35 | US National Bank v. Stonebrink | 200 Or. 176, 265 P.2d 238 | null | oregon | Oregon Supreme Court | Reargued September 10, 1953.
Reversed January 6, 1954.
*177 Manley B. Strayer, of Portland, argued the cause for appellant. On the briefs were Platt, Henderson, *178 Cram & Dickinson, John E. Huisman and Thomas R. Williams of Portland.
Arthur S. Vosburg, of Portland, argued the cause for respondents and cross-appellants. On the brief were Flegel, Vosburg, Joss & Hedlund, of Portland.
Before LATOURETTE, Chief Justice, and ROSSMAN, LUSK, BRAND, TOOZE and PERRY, Justices.
REVERSED; JUDGMENT RENDERED.
LUSK, J.
This is an action brought by the United States National Bank of Portland (Oregon) to recover from the defendants the sum of $2,679.10 with interest, being the aggregate amount of nine school district warrants drawn on the St. Helens Branch of the plaintiff bank and deposited by defendants with its head office in Portland. Defendants were given credit for the amounts of the warrants in their deposit account and subsequently, through withdrawals, closed out the account. The warrants were deposited on different dates, the first on August 1, 1945, and the last on November 8, 1945. The court directed a verdict in favor of the plaintiff for $382.50, the amount of the warrant first deposited, and submitted to the jury the question of defendants' liability as to the balance of the claim. On that issue the jury found against the bank, and the result was a judgment for the plaintiff in the sum of $382.50, from which both parties have appealed.
The case is an aftermath of School District 47 v. U.S. National Bank, 187 Or 360, 211 P2d 723. The decision in that case determined the legal status of 114 warrants purportedly issued by School District No. 47 Joint, Columbia County, Oregon, among them the warrants *179 involved in the case at bar. These instruments were fraudulently issued by the clerk of the school district. Some were made payable to existing persons, and the names of the payees forged by the clerk. In others the payees were fictitious persons, and their names were fraudulently endorsed by the clerk. The school district had a commercial account with the St. Helens Branch of the bank. The warrants on their face were payable at the St. Helens Branch which, upon their presentation, paid them and charged the school district's account. Upon discovery of the fraud perpetrated by its clerk, the school district sued the bank to recover the amount of these payments, and was awarded a judgment in the sum of $34,848.94, which was affirmed on appeal. The principal question was whether the warrants were checks and therefore negotiable or nonnegotiable instruments. We held that they were nonnegotiable instruments, and therefore that defenses interposed by the bank on the theory that they were checks were not available to it.
Hereinafter, for convenience we will refer to the main office of the plaintiff as the Portland office and to its bank in St. Helens as the St. Helens Branch.
The defendants in this case, who were partners, operated a billiard parlor in Portland under the assumed name of "Elite Billiard Parlor", and had a commercial account with the Portland office. They cashed the nine warrants involved in this case at the request of the fraudulent clerk of the school district, endorsed them, and, as stated, deposited them in their account and subsequently closed out the account. After the liability of the bank was sustained in the action brought against it by the school district, the bank brought this action to recoup, in part, its loss.
*180 The bank bases its right of recovery upon the terms of the contract of deposit with the defendants, which reads:
The bank says that the Portland office never received "ultimate payment" of the warrants, and therefore, since the defendants' account has been closed out and the items cannot be charged back, it is entitled to a judgment for their amount. It claims also that defendants are liable on their endorsements. The defendants contend that the warrants were ultimately paid. They also plead as a first affirmative partial defense an estoppel, applicable to all the warrants except the one first deposited. A second affirmative defense was based on the theory that the loss was due to the negligence of the bank, and that as between it and the defendants, both innocent parties, the bank should suffer the loss.
The trial judge took the view that the warrants had not been ultimately paid, and so directed the jury to return a verdict for the bank on the warrant first deposited. He instructed the jury that the defendants were liable on the remaining warrants unless the defense of estoppel was sustained. He withdrew the issue *181 made by the second affirmative defense. The verdict of the jury amounted to a finding that defendants had established the defense of estoppel.
The plaintiff contends on this appeal that it was entitled to have its motion for a directed verdict for the full amount sued for allowed; the defendants urge on their cross-appeal that their motion for a judgment of involuntary nonsuit was erroneously denied, and in any event that the issue of estoppel was properly submitted to the jury and the judgment should be affirmed.
In view of our conclusion upon the question of ultimate payment, further reference to the affirmative defenses will become unnecessary.
Preliminarily, it must be determined whether the Portland office and the St. Helens Branch of the United States National Bank are to be regarded, for the purposes of this case, as a single entity, or as separate and distinct banks.
The St. Helens Branch was established pursuant to the provisions of Title 40, ch 21, OCLA (Title 8, ch 72, ORS). Section 40-2201, (ORS 72.020) provides:
Section 40-2111, OCLA, (ORS 714.120) provides:
1. We think that this statute clearly applies to the transaction involved in the present case. It cannot be said, as counsel for defendants suggest, that the sole purpose of the statute was to make inapplicable the rule of Price v. Neal, 3 Burr 1354, 97 Eng Rep 871, to transactions coming within its purview. Doubtless it has that effect. The rule of Price v. Neal has been carried into the negotiable instruments law of this state: §§ 69-503, 69-1002, 69-1005, OCLA (ORS 71.185, 71.188); First National Bank v. Noble, 179 Or 26, 60, 168 P2d 354, 169 ALR 1426. "A bank is bound to know the signatures of its depositors, and therefore, if as drawee a bank pays a check to which is signed the name of one of its depositors, it does so at its peril." First National Bank v. U.S. National Bank, 100 Or 264, 273, 197 P 547, 14 ALR 479. Under the statute, branches of the same bank being regarded as separate banks, the Portland office of the United States National Bank would not be bound to know the signature on a check drawn on the St. Helens Branch by a depositor of the latter. But the statute provides that an instrument drawn on one office or branch and received for deposit or collection at another shall be deemed for all purposes as payable at another bank. One such purpose would be that of determining the question of the rights and liabilities of the parties as between a branch and its depositor when the former has received from the latter for collection a check or other instrument *183 drawn upon another branch of the same bank. In such a case the bank of deposit is to be regarded as a collecting bank to the same extent as if the drawee bank were an entirely separate institution; or, to use the language of counsel for the plaintiff on the trial, as though the drawee "had been the First National Bank or the Bank of California."
Without the aid of statute, indeed, a similar conclusion was reached in Dean v. Eastern Shore Trust Co., 159 Md 213, 150 A. 797. The question there was whether a branch bank which had cashed a check drawn on another branch, payment of which was subsequently refused by the drawee because it had been countermanded, could recover the amount of the payment from the drawer. If the branches were to be deemed identical with the main bank, then, as the court said, "when the Eastern Shore Trust Company paid the check at its Cambridge Bank, the check was discharged by payment, and the entire transaction closed." But, since the branches were held to be separate entities for the purposes of such a case the plaintiff bank could recover as a holder in due course. The court said:
The court further said that the provision of the Bank Collection Code which declares that, for the purpose of such Code, "the term `bank' shall include a branch or office of a bank, tends to strengthen that conclusion." See, also, 9 CJS 87, Banks and Banking § 55.
It may be hazarded that considerations such as the Maryland court referred to influenced the enactment of § 40-2111, OCLA (ORS 714.120). We have no doubt that the statute applies here, and we accept as correct the following statement in plaintiff's reply brief of the theory of its case:
This being the position of the case, the rights of the parties must be determined not only by the contract of deposit, but also by certain provisions of the Bank Collection Act to which attention will presently be called.
*185 The evidence relevant to the question of "ultimate payment" may be briefly stated. Upon the deposit of each warrant with the Portland office, defendants' account was credited and the warrant forwarded to the St. Helens Branch which marked it "paid", charged the amount against the account of the school district, and credited the Portland office. The credit stood until after the decision of this court in School District 47 v. U.S. National Bank, supra, which was rendered November 15, 1949. Mr. Walter F. Neubert, assistant cashier of the plaintiff bank, testified concerning the procedure that was followed. He testified that as between the main office of the bank and its various branches settlement of accounts was not made through the clearing house, but directly between the main office and the various branches. We quote from his testimony:
By the terms of the agreement subject to which the warrants were deposited it was provided that the items were "credited conditionally at the time of deposit", and the Portland office reserved the right "to charge back any item before ultimate payment." As we have *187 seen, the Portland office and the St. Helens Branch maintained reciprocal accounts. The method of handling items forwarded for collection which they employed is thus described in 9 CJS 497, Banks and Banking § 242:
We now call attention to §§ 40-2202 and 40-2209, OCLA, (ORS 72.030 and 72.090) which are parts of the Bank Collection Act. (It should be observed that, whereas in the text of CJS from which we have just quoted the bank to which an item is sent for collection is referred to as the "collecting bank", the statute uses the term "agent collecting bank" in such a way as to apply to a bank which forwards an item for collection.)
Section 40-2202, OCLA, (ORS 72.030) provides:
Section 40-2209, OCLA, (ORS 72.090) provides:
The statute does not define "unconditional credit", doubtless because no definition was considered necessary. The difference between a conditional and unconditional credit is illustrated by the contrast between the provision of the deposit contract, crediting items to a depositor's account conditionally and subject to be charged back before ultimate payment, and the total absence of evidence as to any similar stipulation with regard to the credits given by the St. Helens Branch to the Portland office for the amounts of the warrants herein involved. There is authority supporting the view that, if the terms of the deposit contract were in conflict with the applicable provisions of the Bank *189 Collection Act, the former would control. Leonardi v. Chase National Bank, 33 NYS2d 706. But we may pass the question because here there is no such conflict. "Ultimate payment" may mean the same thing as payment by an "unconditional credit". There was such a credit given in this case, and therefore ultimate payment within the meaning of the contract. The relationship between the Portland office and its depositor thereupon changed from that of principal and agent to creditor and debtor (Security Savings & Trust Company v. King, 69 Or 228, 231, 138 P 465), both under the express terms of the statute and under court decisions interpreting similar transactions when not governed by statute. The rule is thus stated in 6 Michie, Banks and Banking (Perm ed) 19, § 9:
Among numerous decisions supporting the text are the following: Briggs v. Central National Bank, 89 NY 182, 42 Am Rep 285; Stone v. Wachovia Bank & Trust Co., 145 SC 166, 143 SE 27; Pinkney v. Kanawha Valley Bank, 68 W Va 254, 69 SE 1012; Maget v. Bartlett Bros. Land & Loan Co., 64 Ark 247, 41 SW2d 849; Dean Tobacco Warehouse Co. v. American Nat. Bank, 173 Tenn 365, 117 SW2d 746, 118 ALR 360 (in which the deposit contract provided "All items are credited subject to final payment in cash or solvent credits"); First Trust & Savings Bank v. Kent, 119 F2d 151. The same rule prevails where credit is given to the bank of deposit *190 by an intermediate collecting bank. Leonardi v. Chase National Bank, supra; People v. Sheridan Trust & Savings Bank, 358 Ill 290, 193 NE 186, cer den 295 US 740, 79 L ed 1687, 55 S Ct 654 (where the deposit contract provided that credit was conditioned upon payment in cash or solvent credits). See, also, 2 Morse on Banks and Banking (6th ed) 994, § 451, Note 1; 9 CJS 497, Banks and Banking § 242, 501 § 245, 507 § 248. As illustrative of the holdings in these cases particular attention is called to Briggs v. Central National Bank, supra, which was an action brought to recover the amount of a check drawn on the First National Bank of Newark and delivered by plaintiffs to the defendant bank for collection. The drawee was collecting agent for the defendant in New Jersey under an agreement that all collections made should be credited to defendant in a collection account which was settled every Tuesday. Defendant forwarded the check to the drawee by mail. It was received June 10, 1880, and was charged to the drawer, who was a customer and credited to defendant in said collection account. The next day the drawee suspended business and went into the hands of a receiver. The court, after referring to the agreement concerning collections between the two banks, said:
*191 Plaintiff's counsel in their brief do not challenge the rule announced by these authorities, but question its application to the facts of this case because of the evidence of the witness Neubert. They argue that Neubert's statement that up until November 30, 1949, the transaction was not closed "because there had been discussion back and forth in between that time" is evidence that the Portland office had not accepted the St. Helens Branch as debtor for the amount of the warrants. We do not agree.
2. The nature of these discussions is not shown, nor when they took place. For all that appears it may have been after discovery of the fraud, which was in August, 1946. Plaintiff had the burden of proof. There is no evidence whatever that the credits were given otherwise than in the regular course of banking business and as payment of the items involved, or that they were not accepted as such by the Portland office. It is established without contradiction that the items were carried on the books of the St. Helens Branch as charges against the account of the school district and as credits to the Portland office until November 30, 1949, after the conclusion of the litigation between the school district and the plaintiff. It was not until April, 1948, after the decision of that case in the Circuit Court, that the plaintiff made demand on the defendants for reimbursement. The judgment in the Circuit Court was adverse to the plaintiff, and the demand was that the amount of the warrants be paid by the defendants in the event that the judgment should be affirmed on appeal. In the meantime defendants had closed out their account with the Portland office, exhausting the credits arising from the warrants. It is safe to say, for there is nothing to the contrary, that until withdrawn the *192 Portland office treated the money as its own. In the face of these facts it is idle to argue that the conclusion of the witness Neubert that the transaction was not closed, and his vague statement concerning discussion at some undisclosed time between the two banks relative to the warrants, amounts to substantial evidence that the credits were not accepted by the Portland office as payment of the warrants. The question whether the credits were absolute or conditional must be determined from the evidence of what occurred at the time of the transactions, not from the conduct of the two banks after discovery of the mistake made by the St. Helens Branch in paying the warrants. As the court said in Federal Reserve Bank of Richmond v. Peters, 139 Va 45, 123 SE 379:
The foregoing is quoted with approval in Maget v. Bartlett Bros. Land & Loan Co., supra.
And in Dean Tobacco Warehouse Co. v. American Nat. Bank, supra, it was held that the fact that the forwarding bank (which suspended business the day after credit for the collection was given by the drawee bank) had received no notice of the credit was immaterial, the court saying: "When the credit was given the transaction was completed. The notice of the payment of the check was not part of the transaction itself, but only evidence of the transaction."
*193 3. We conclude that the Portland office received ultimate payment of the warrants by means of unconditional credits given it by the St. Helens Branch. There is no conflict between this holding and the decision in Security Savings & Trust Company v. King, supra, that the issuance of a draft in payment of a check by an intermediate collecting bank to the bank of deposit did not constitute compliance with the condition of the deposit contract, that the bank "should only be held liable when proceeds in actual funds or solvent credits shall have come into its possession", the bank of deposit having been given telegraphic notice before receipt of the draft that the drawee bank had overlooked a stop order and honored the check in error. The case is explained and distinguished in First National Bank v. Noble, supra, 179 Or 62-65. While the facts of the case at bar are quite different from those of First National Bank v. Noble, the decision in the latter case that a cashier's check is a solvent credit and constituted "ultimate payment" within the meaning of a bank deposit contract is in entire harmony with our conclusion here.
4. In its printed briefs plaintiff relied solely as its ground of recovery upon the claim that the warrants had not been ultimately paid. Upon the oral argument, however, it was contended that the defendants are liable in any event upon their endorsements of the instruments. It has been further suggested that plaintiff had a right of restitution for money paid under a mistake of fact. But the plaintiff, "as the bank of deposit of the warrants", has no standing to urge these contentions. As an agent for collection of money which it received and paid over to its principal it has fulfilled its undertaking. It was under no duty to reimburse the *194 St. Helens Branch after discovery of the fraud, and could not have been legally compelled to do so. That was a purely voluntary payment, for, as stated by Mr. Justice Cardozo (then chief judge of the New York Court of Appeals) in Carson v. Federal Reserve Bank, 254 NY 218, 172 NE 475, 70 ALR 435, the rule is that "money paid to an agent, and lawfully accepted, may not thereafter be reclaimed by one who has made the payment with notice of the agency, if before the attempted reclamation the agent in good faith has settled with the principal." See, also, National Park Bank v. Seaboard Bank, 114 NY 28, 20 NE 632, 11 Am St Rep 612; Restatement, Agency § 339 and Comment f, p 747; 2 Am Jur 264, Agency § 336. The rule does not apply where the fund has not been actually paid over, but is held by the agent as a debtor. Carson v. Federal Reserve Bank, supra; Turetsky v. Morris Plan Industrial Bank, 22 NYS2d 514. That, of course, is not the case here. Withdrawals from the account lawfully made by the defendants, who were themselves free from fault, brought about payment to the principals of the money collected by their agent. Thus we have precisely the situation disclosed by National Park Bank of New York v. Seabord, supra. There the drawee bank, acting under a mistake of fact, paid to the collecting bank a check which had been made out for $18 and fraudulently raised to $1800. The funds were placed to the credit of the principal by the collecting bank and drawn out by him. The ruling, as explained by Mr. Justice Cardozo in the Carson case, was that the collecting bank "could no longer be held to restitution at the suit of the drawee bank after the drafts of the account current had exhausted the credit balance existing at the time of the collection." If the Portland office of the United *195 States National Bank has suffered a loss it is one which it brought on itself by a restitution which it was under no legal obligation to make. In these circumstances it can have no recourse against the defendants.
5. It was error for the circuit court to direct a verdict for the plaintiff for the amount of the warrant first deposited with the Portland office by the defendants, and error to deny the defendants' motion for judgment of involuntary nonsuit. The judgment must therefore be reversed, and, as the facts are not in dispute, judgment will be entered here for the defendants. Art. VII, § 3, Constitution of Oregon. | 091ed682c04313b9857cfd1084ebbe3c7eee36fed52582d1b7015f18a7cc9558 | 1954-01-06T00:00:00Z |
abae010f-90d4-47b0-b195-8c35b8a63a95 | Moore Mill & Lbr. v. CURRY CO. BK. | 200 Or. 558, 267 P.2d 202 | null | oregon | Oregon Supreme Court | Affirmed February 24, 1954.
*559 Robert L. Dressler, Assistant United States Attorney, of Portland, argued the cause for appellant. On *560 the briefs were Henry L. Hess, United States Attorney, and Donald W. McEwen and Maurice V. Engelgau, Assistant United States Attorneys, of Portland.
Grant T. Anderson of Portland argued the cause for respondent Moore Mill & Lumber Co. On the brief were King, Wood, Miller, Anderson & Nash and Eric R. Haessler, of Portland.
Before LATOURETTE, Chief Justice, and WARNER, LUSK, BRAND and PERRY, Justices.
AFFIRMED.
WARNER, J.
This is a suit to determine the interest of the parties in a fund of $6,500 held by the Curry County Bank in Gold Beach, Oregon. The United States intervened, claiming ownership to be in Morrill Logging Company and a tax lien against that interest. From a decree in favor of the plaintiff Moore Mill & Lumber Co. and against the intervenor, the United States alone appeals.
The question of ownership interest in the fund is clouded by relatively complicated negotiations had between the plaintiff-respondent Moore Mill & Lumber Co., a corporation (hereinafter called Moore Mill) and the defendants, Guy H. Granger and A.A. Morrill, who were doing business as Morrill Logging Company (hereinafter called Morrill) and the antecedent transactions between Morrill and Double O Lumber Company, a corporation (hereinafter called Double O).
It appears that on or about January 12, 1948, Morrill contracted with Double O to log, cut and remove certain timber from lands owned by Double O in Curry county; but because of alleged defaults on the part of Morrill, notice of termination was given to Morrill on May 26, *561 1948. Notwithstanding, Morrill continued to remove timber from the interdicted premises of Double O.
While the relations between Morrill and Double O were in this status, Morrill, early in June 1948, began negotiations for the sale and immediate delivery of one million feet of Douglas fir logs to Moore Mill. As a part of these negotiations, Moore Mill on June 3, 1948, made an advance of $500 against the logs to be delivered and on June 9 made a further advance by a check for $6,500 for the same purpose. On the same date Morrill obtained a certified check from the Coquille branch of the First National Bank of Portland, payable in like amount of $6,500 to the Curry County Bank. Later in the day this was delivered to the latter bank by the late Collier H. Buffington, then Morrill's attorney and agent, together with a letter of instructions. The Curry County Bank thereupon acknowledged receipt of the letter and check, which it cashed, pursuant to the directions contained in the letter, and deposited in its escrow account.
On June 16, 1948, Moore Mill received a letter from Double O's counsel notifying it that the contract between Morrill and Double O had been terminated and that Double O would look to Moore Mill for the value of all stumpage from the Double O property received by Moore Mill from Morrill. This news interrupted the completion of the impending purchase arrangement between Moore Mill and Morrill, the former refusing to proceed without assurance of protection against liability to Double O. It eventuated the two transactions to which we now refer: first, on June 24, 1948, an amendatory letter of instructions to the bank concerning the disbursement of the funds it received on June 9; and, second, the execution of a written contract *562 between Moore Mill and Morrill relative to the purchase and sale of the logs. Subsequent to these later arrangements, Morrill on or about November 23, 1948, completed delivery of the logs called for by the contract with Moore Mill.
Apparently, although the details are not disclosed, Double O and Moore Mill at some time prior to the bringing of the case at bar effected a mutually satisfactory arrangement whereby Moore Mill in April 1950 waived the provision of the letter of June 9, 1948, mandating delivery of a title certificate by Double O as a condition precedent to delivery of the $6,500 deposit and directed the bank to pay that amount to Double O. It was the bank's refusal to do so that precipitated the filing of this suit.
We now give attention to the claim of the government. It appears that during the years 1947, 1948 and 1949 Morrill had failed to make payment to the collector of internal revenue for the amounts of withholding taxes and other taxes which Morrill had retained from the wages of its employees during those years. This resulted in 20 separate assessments being made. The first was on February 14, 1949 (substantially eight months following the Moore Mill-Morrill-Curry County Bank transactions above referred to). Together with penalties and interest, these assessments totaled $6,645.05. The government claims a lien for that amount against the $6,500, from and after the date the collector of internal revenue for Oregon received the list of such assessments. This is predicated upon the theory that the monies in the Curry County Bank are the property of Morrill.
We have already alluded to the letters addressed to the bank concerning the $6,500 deposited with it. The *563 first of these letters was dated June 9, 1948, and reads (omitting formal parts):
The second letter, dated June 24, 1948, reads (omitting formal parts):
Both letters were signed by Mr. Buffington as attorney and agent for Morrill.
1. The rights of the government, when attempting to enforce a lien against the property or property rights of a delinquent taxpayer, arise no higher than the taxpayer had therein. Karno-Smith Co. v. Mahoney (CCA 3d 1940) 112 F2d 690, 692; F.H. McGraw & Co. v. Sherman Plastering Co. (DC 1943) 60 F Supp 504, 512 (affirmed 149 F2d 301, certiorari denied 326 US 753, 90 L ed 452, 66 S Ct 92); New York Casualty Co. v. Zwerner (DC 1944) 58 F Supp 473, 477; United States v. Yates, (Tex) 204 SW2d 399, 406.
2. A lien of the kind which the government here attempts to assert arises at the time the assessment list is received by the collector. 26 USCA § 3671. As we have noted, the first assessment list was received by the Oregon collector on February 14, 1949. Our inquiry is, therefore, focused on the discovery of what interest, if any, Morrill had in the funds held by the bank on that date, i.e., whether the funds are held as the res of a trust, escrow agreement or otherwise. If *565 it is found that Morrill had no interest therein as of February 14, 1949, then the government's claim of a lien against the $6,500 must fail.
The government contends that the transaction with the bank, as reflected by the letters of June 9 and 24, is more consistent with the theory of escrow than with the plaintiff's theory of trust. It was the holding of the circuit court that a trust was thereby established by the plaintiff Moore Mill for the benefit of Double O and for the protection of itself.
We think the evidence preponderates that as of June 9, 1948, the $6,500 tendered to the bank was the property of Morrill and not Moore Mill, notwithstanding that it had been advanced to Morrill by Moore Mill. We are also persuaded that the deposit made in the bank at that time did not create an escrow.
Historically, the term "escrow" was originally applied to instruments for the conveyance of land but has since been expanded to comprehend all written instruments so deposited. 19 Am Jur 419, Escrows § 3; 30 CJS 1193, Escrows § 3. In a few jurisdictions money deposited to be held until the performance of a condition has been treated as an escrow. 30 CJS 1193, Escrows § 3. However, because of our conclusion concerning the insufficiency of the instant transaction to create an escrow, it is not necessary for us to decide whether money so deposited can become the subject of an escrow arrangement. In discussing the legal effect of the letters from Morrill to the bank, we will assume without deciding that money is a proper item for an escrow.
Except as hereinafter noted, an escrow is, by its true nature and at the level of its minimum requirements, not less than a tripartite arrangement. It is *566 initiated in the first instance by a contract between two parties respecting the future delivery of an instrument upon the performance of some condition. The instrument is thereafter, by agreement of the parties to the contract, deposited with a third party, sometimes called the escrow agent. In essence, the deposit with the third party, with instructions concerning its ultimate delivery, is a new or additional agreement springing from and collateral to the original transaction.
The necessity for an agreement between the parties principally interested in creating the escrow arrangement is stated in 7 Thompson, Real Property perm ed, 663, § 4195, as follows:
Davis v. Brigham, 56 Or 41, 48, 107 P 961, Ann Cas 1912B 1340, evidences adherence to the same thought. There the court adopted from 11 Am & Eng Enc Law 2d ed, 335, the following definition of the character of contract that is essential to constitute an escrow:
The same proposition finds echo and support in McPherson v. Barbour, 93 Or 509, 516, 183 P 752, where it is said:
Also see Hansen v. Bellman, 161 Or 373, 391, 88 P2d 295; Foulkes v. Sengstacken, 83 Or 118, 132, 158 P 952, 163 P. 311.
Above we noted an exception to the foregoing rule. In Hansen v. Bellman, supra, it is stated as follows, at p. 391: "* * * There is, however, a class of cases where no contract exists, as where an instrument is deposited with a third person to be delivered to the beneficiary named therein upon the death of the depositor: 21 C.J. 866, § 2. * * *" Also see 30 CJS 1193, Escrows § 2.
3. It is evident to us that under the foregoing rules, the deposit made with the bank on June 9 was not an escrow arrangement, for the reason that it was not predicated upon a pre-existing agreement between *568 Morrill and Double O to liquidate all or any part of Morrill's indebtedness to Double O in this matter. Their mutual agreement of January 12, 1948, provided an entirely different method for the payment of stumpage cut on the lands of the latter. Moreover, there is no evidence that Double O concurred in the so-called escrow or had any knowledge of its existence. The fact that Mr. Buffington, as agent for Morrill, referred to it as an "escrow" or that the bank after cashing the check for $6,500 deposited it in its "escrow account" is not controlling as against its true character. McPherson v. Barbour, supra, at p. 516.
4. The claim of Moore Mill that the funds were the res of a trust is, in our opinion, an honest but erroneous afterthought. It is not necessary, however, to assign our reasons for this holding because of the legal character we hereinafter assign to the deposit.
5. Having concluded that the deposit created neither a trust nor an escrow, what then was the legal character of the deposit made by Morrill with the bank on June 9 and what, if any, interest did Morrill have therein afterward, up to and including the conference held on June 24? We are of the opinion that the facts warrant designating the fund as a specific deposit, sometimes erroneously referred to as a special deposit.
A specific deposit is described in 1 Morse, Banks and Banking 6th ed, 506, § 185, in the following words:
A special deposit is defined in 1 Morse, supra, p. 504, § 183, as follows:
To the same effect is 9 CJS 570, Banks and Banking § 275, reading:
Also see 5 Zollman, Banks and Banking, 571, § 3603, where it is said:
In First Nat. Bk. v. State Bk. of Portland, 119 Or 601, 604, 222 P 1079, we held:
It will be observed that each of the foregoing definitions emphasizes the element of ownership in the one *571 creating the specific deposit. It therefore follows that Morrill had an ownership interest in the funds from June 9 until the date of the conference held on June 24.
We now press our inquiry to learn whether Morrill parted with that interest at any time prior to the filing of the government's first lien for the assessment of delinquent taxes.
We recall that Double O's letter of June 16, 1948, addressed to Moore Mill and threatening to hold that corporation for the value of logs cut by Morrill and sold to Moore Mill, precipitated a situation which momentarily threatened the continuity of negotiations for any agreement between Moore Mill and Morrill with respect to such timber. This resulted in the conference held on June 24 in Moore Mill's Bandon office with D.H. Miller, Sr., president of the Moore Mill corporation, Robert S. Miller, vice president of Moore Mill and one of its legal counsel, and Collier H. Buffington, the attorney and agent for Morrill. It had as its objective some form of protection for Moore Mill against the action threatened by Double O. This had the full cooperation of Morrill, acting through its counsel and agent.
The tangible fruits of this conference were (1) approval of the form of agreement between Moore Mill and Morrill which was dated June 10, 1948, although actually executed shortly after the conference of June 24; and (2) the letter of modification to the bank dated June 24. More important, however, was the transfer from Morrill to Moore Mill of Morrill's interest in the deposit of $6,500 made on June 9. From Robert Miller's testimony we get an uncontradicted account of what transpired at the June 24th meeting wherein he said: "* * * so on June 24th we agreed with Mr. Buffington *572 that that money which was on deposit in the bank was the Moore Mill & Lumber Company money * * *."
6. This unchallenged account of what then occurred confirms in us the belief that any right, title or interest of Morrill in the $6,500 in question was terminated as of June 24, 1948, and, as a consequence, the United States at no time has had a lien thereon.
The decree of the circuit court is affirmed. | 8c2d51c3ef2eb5cafeac74ba9bf1ed176b0dd1d6722bb2bf25aeb203f9eb6ce8 | 1954-02-24T00:00:00Z |
240a81b5-a667-4a70-88da-abb8ca4467e7 | State of Oregon v. Holland | 202 Or. 656, 277 P.2d 386 | null | oregon | Oregon Supreme Court | Affirmed December 8, 1954.
*657 Roy Kilpatrick, of Canyon City, argued the cause for appellant. With him on the brief were Rob't. D. Lytle and W.F. Schroeder, of Vale.
Clifford B. Olsen, Deputy District Attorney for Grant County, argued the cause for respondent. With him on the brief was Michael S. Mogan, District Attorney for Grant County.
*658 Before WARNER, Acting Chief Justice, and LUSK, BRAND and PERRY, Justices.
AFFIRMED.
BRAND, J.
The defendant was charged with the crime of murder in the second degree. He entered a plea of not guilty, was tried by a jury, and found "guilty * * * as charged in the indictment." He was sentenced, and now appeals. The indictment reads as follows:
The first assignment of error reads as follows:
Defendant contends that the 1953 legislature, by enacting Oregon Revised Statutes without a saving clause, granted a legislative pardon to the defendant. On 31 October 1953, the date of the alleged crime, the following statute was in full force and effect:
The statute remained in effect at the time of arraignment and plea of not guilty, but on 31 December 1953 the Oregon Revised Statutes went into effect pursuant to the provisions of Oregon Laws 1953, ch 3. The defendant was tried on 4 January 1954.
The crime of murder in the second degree, so far as relevant here, is defined in Oregon Revised Statutes as follows:
Comparison of OCLA, § 23-402 with ORS 163.020 discloses that the essential elements of the crime have not been changed.
The duties of the Statute Revision Council were set forth by statute:
In defining second degree murder the revisors clearly complied with the direction that they should not "alter the sense, meaning or effect" of the previous statute on the subject.
Defendant relies upon the provisions of Oregon Laws, Chapter 3, now ORS 174.520 to and including 174-560, as granting to defendant a "legislative pardon." We quote the relevant portions:
1. It is clear, as contended by the defendant, that Oregon Revised Statutes were adopted as laws, and not merely as evidence of the law. See 1 ORS, Preface, pp V and VI.
2. The fact, however, that ORS was enacted as law, and that the previous statutes were repealed, is not decisive of the case. The pronouncement of the Massachusetts Supreme Court is applicable here:
And see State v. Rogers, 122 NJL 490, 6 A2d 207, 126 NJL 428, 19 A2d 886.
Counsel cites State v. Ju Nun, 53 Or 1, 97 P 96, 98 P 513, to the following effect:
That case bears no resemblance to the one at bar. Defendant had been tried on an information and convicted. While the case was pending on appeal, the constitution was amended (June 1908) so as to provide that "no person shall be charged in any circuit court * * * except upon indictment * * *." It was held that the amendment was prospective only and the conviction was affirmed.
The portion quoted by appellant correctly states the law as to ordinary repeals of statutes previously enacted. It does not purport to state the effect of a law which repeals and simultaneously reenacts a statutory provision. The rule in the latter case is stated in American Jurisprudence:
Thus it is immaterial whether a single statute is repealed and simultaneously reenacted or whether many statutes are repealed and simultaneously reenacted in a general statutory revision.
Referring to Sutherland on Statutory Construction, we find that the author discusses the effect of the enactment of a "code". We quote:
As thus qualified, it is apparent that the author refers to the type of code which is technically a revision. In the same section we find the following statement:
*664 See also United Hebrew Association v. Benshimol, 130 Mass 325; State v. Prouty, 115 Iowa 657, 84 NW 670; State v. Rogers, 122 NJL 490, 6 A2d 207; State v. Reynolds, 59 SD 53, 238 NW 142; Hancock v. District Township of Perry, 78 Iowa 550, 43 NW 527; Commissioner of Public Works v. Cities Service Oil Co., supra, 308 Mass 349, 32 NE2d 277.
3. The defendant seeks to avoid the force of the above rule by arguing that "we are dealing here not with a re-enactment, but with an enactment * * *." Of course Oregon Revised Statutes are enactments, but they also constitute a repeal and simultaneous re-enactment of the previous statutes insofar as the revision makes no change in the meaning of the earlier statutes, even though changes in phraseology may be found.
It would require strong evidence to induce any court to assume that by enacting the revised statutes it was the legislative intent to permit all persons who committed crimes before December 31, 1953 to go unpunished because they were not tried until the fourth day of January, 1954, or thereafter. In our opinion the legislature clearly expressed the intention, in harmony with the general rule, when it provided that the revised statutes shall be considered as "substituted in a continuing way" for the provisions of the prior statute laws repealed. (Italics ours.) This was a saving clause.
*665 Finally, while we deem it unnecessary, reference is made to OCLA, § 23-105, which was in effect at the time of the commission of the offense, and which was reenacted by ORS 161.040. While the phraseology of the earlier section has been changed and simplified, the meaning remains the same. In its revised form, the statute reads:
4. In Ibach v. Jackson, 148 Or 92, 35 P 672, this court held that the provisions of OCLA, § 23-105 had the same effect as a saving clause in the repealing act. Our conclusion is that the legislature did not grant a legislative pardon to the defendant and the trial court was vested with jurisdiction to try the case.
The next assignment of error challenges the sufficiency of the indictment. The defendant entered his plea of not guilty on 21 November 1953. It was only after the jury had been impaneled and sworn on 4 January 1954, and after the prosecution had made an opening statement, that the defendant objected to the introduction of any evidence, as follows:
There are two statutory grounds, among others, on which the defendant might have demurred to the indictment, (1) that "It does not substantially conform to the requirements of ORS 132.510 to 132.570, 132.590, 132.610 to 132.690, 132.710 and 132.720;" ORS 135.630 (2); and (2) that "The facts stated do not constitute a crime; * * *." ORS 135.630 (4). These provisions reenact those of OCLA, § 26-832. The sections of ORS supra, stating the requirements of indictments, are substantial reenactments of the code provisions in OCLA, Title 26, ch 7, upon the same subject. We shall refer to the relevant sections by their respective section numbers in ORS.
5. It is obvious that an indictment may fail to comply with at least some of the requirements specified in ORS 135.630 (2) and yet not be demurrable on the ground stated in ORS 135.630 (4) (failure of facts stated to constitute a crime.) If every failure to comply with all of the provisions of law specified in ORS 135.630 (2) made an indictment demurrable under ORS 135.630 (4), there would have been no occasion to provide for any demurrer except on the basis of the latter subsection.
Under the provisions of ORS 135.610-620, a demurrer must be in writing and should be filed at the time of arraignment, unless further time is allowed by the court. The reason is plain. Errors which may *667 be curable should not be ignored until jeopardy has attached, and then be insisted upon as a bar. In State v. Smith, 182 Or 497, 188 P2d 998, this court said:
6. Under the uniform ruling of this court the defendant by failing to demur under the provisions of ORS 135.630 (2) waived all objections concerning the sufficiency of the indictment as to definiteness and certainty.
7. Defendant calls attention to the fact that the appendix to OCLA, Title 26, chapter 7, which sets forth *668 approved forms for criminal indictments, was repealed by Laws of 1951, chapter 391, and argues, at least by implication, that all of the archaic rules of the common law on the subject were thereby reinstated. Such was not the effect of the 1951 act. The repeal of the statutory forms carries with it no implication that such forms are now insufficient when used in an indictment if they comply with constitutional and statutory requirements.
In State v. Smith, supra, we said:
The fact that, since 1864, the approved forms have been used and held good, necessarily implies that the constitutional requirements of a criminal charge were met. Indictments similar to those in the repealed appendix have been upheld in many cases. State v. Dodson, 4 Or 64; State of Oregon v. Spencer, 6 Or 152; State of Oregon v. Brown, 7 Or 186; State v. Ah Lee, 18 Or 540, 23 P 424; State v. McAllister, 67 Or 480, 136 P 354; State v. Hosmer, 72 Or 57, 142 P 814; State v. Morris, 83 Or 429, 163 P 567; State v. Weston, 102 Or 102, 201 P 1083; State v. Wilson, 172 Or 373, 142 P2d 680.
Although the appendix containing authorized forms has been repealed, ORS 132.510 has not been repealed. It has been in the books since 1864, and provides that
*669 Thus the common law rules for criminal pleading do not apply, and the statutes control. The essential requirement of an indictment, if it is to withstand a challenge on the ground that the facts stated do not constitute a crime, is set forth in ORS 132.520 (2). It must contain:
The indictment in question sets forth the acts constituting the crime charged, in the words of the statute, omitting only the portions of the statute not relevant to the particular charge. We have repeatedly held that an indictment is sufficient when it alleges the acts constituting the crime charged in the words of the statute defining the crime. State v. Bailey, 115 Or 428, 236 P 1053; State v. Christiansen, 150 Or 11, 41 P2d 442.
8, 9. The indictment herein specifies the name of the court; the names of the parties. It contains a statement of the acts constituting the offense, in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended. It complies with the requirements of ORS 132.520 to and including 132.550, and is therefore sufficient. This court cannot return to the archaic and technical requirements of the common law as to pleading of criminal cases. State v. King, 165 Or 26, 103 P2d 751. Contrary to the contention of defendant, the indictment states the material facts which are not mere conclusions. It was unnecessary to allege that the act was feloniously done. State of Oregon v. Abrams, 11 Or 169, 8 P 327, State v. Ede, *670 167 Or 640, 117 P2d 235; State v. Christiansen, supra. The statement that the defendant purposely and maliciously killed the victim by cutting him with a knife, establishes that the act was a felony. The other contentions are frivolous. State v. Casey, 108 Or 386, 213 P 771, 217 P 632; State v. Kelley, 118 Or 397, 247 P 146; State v. King, 165 Or 26, 103 P2d 751; ORS 132.610.
The conviction is affirmed. | 60afec8474b3da18e8b9c5c335d4ed8a2d714e973d8847144323e1c9866464b3 | 1954-12-08T00:00:00Z |
86694460-a454-4de9-a35c-2af9f12446b7 | Hull v. CLEMENS | 200 Or. 533, 267 P.2d 225 | null | oregon | Oregon Supreme Court | Affirmed February 24, 1954.
*534 Jack H. Dunn, of Myrtle Point, argued the cause for appellant. On the brief were Dement, Dunn and Meldrum, of Myrtle Point.
Pat H. Donegan, of Burns, argued the cause and filed a brief for respondents.
Before LATOURETTE, Chief Justice, and ROSSMAN, LUSK, TOOZE and PERRY, Justices.
AFFIRMED.
ROSSMAN, J.
This is an appeal by the plaintiff, Elvin Hull, from a decree of the circuit court which dismissed this suit. The order of dismissal as to the defendant, J.C. Clemens, ordered him [he having made the offer] to enter upon the records satisfaction of a judgment which he had recovered June 12, 1944, in the Circuit Court for Coos County against Hull and his wife, Milla, in the sum of $6,480. The decree recites that during the course of the trial the suit was dismissed on motion of the plaintiff as to the other two defendants, Samuel Carter and Veva L. Carter. The suit, as originally instituted, sought specific performance of a contract for the conveyance by defendant Clemens to Hull and his wife of a tract of 320 acres of land situated in Harney County, or, in the alternative, damages for nonconveyance. During the trial the plaintiff became satisfied that the Carters had purchased the property in good faith, for a valuable consideration and without notice of the plaintiff's interest in the property. It *535 was for that reason that the plaintiff moved for a dismissal of the suit as to the Carters. The plaintiff-appellant, Hull, of course, does not attack the parts of the decree which (1) dismissed the suit as to the Carters; (2) ordered defendant-respondent Clemens to satisfy upon the records his judgment against the Hulls; and (3) denied the plaintiff the remedy of specific performance. He assigns as error the court's refusal to award him damages for the omission of Clemens to have conveyed to him the aforementioned property. The complaint avers damages in the amount of $9,822.10. Hereafter we may refer to plaintiff-appellant Hull as Hull, to his wife as Mrs. Hull, to defendant-respondent Clemens as Clemens and to defendants Carter as the Carters. Mrs. Hull is not a party to this case and the Carters are neither appellants nor respondents.
The facts, except those which indicate the value of the property, are free from dispute. Hull and his wife, as purchasers, and Clemens, as vendor, signed a contract October 16, 1939, whereby (1) the Hulls agreed to pay Clemens the sum of $9,600 for the tract of land with which this appeal is concerned, and (2) Clemens agreed to convey the property to the Hulls when they had paid in full the purchase price. The contract required the Hulls to pay $1,500 concurrently with the execution of the contract and the balance of the purchase price in annual installments of $810. Unpaid balances bore interest. The contract granted to the vendees possession of the property but retained in Clemens, as vendor, title until the entire purchase price had been paid. The Hulls made the initial payment and took possession. Thereafter they seasonably made the first two annual payments.
*536 By 1942 the Hulls had met with financial reverses and found themselves unable to discharge the installment payment which became due October 16 of that year. As a witness, Hull explained, "I had financial reverses of very serious nature." He added that because of the "shortage of men" arising out of the war conditions he was unable to work the property properly. In addition to operating the Harney County property, Hull conducted a venture in Myrtle Point, Coos County, which he identified as "a truck business or transfer business." His home was in Powers, Coos County. Evidently, as a result of his straitened financial condition, he sold some of the livestock which he had upon the Harney County acreage. Since he testified that in or about the year 1945 he worked for wages in the logging industry, it may be that his truck business was not profitable.
On or about October 16, 1942, when the installment payment for that year became due, Hull told Clemens that he wished to be released from the contract. The brief which his counsel filed in this court says: "During the early part of November, 1942, plaintiff advised defendant that it was his intention to give up the land and offered to release his interest in the property arising out of the contract." When Hull so told Clemens the latter replied that, since Hull had had the use of the land for the current year and had taken the crop which it produced, he ought to discharge the year's installment payment. Hull declined to make the payment and, according to his testimony, left the property. Neither he nor his wife returned to Harney County until the summer of 1948. When the Hulls left Harney County an action had been filed against Hull in that county by an individual named Jordan. The evidence does not disclose the nature of that case, but Hull, in *537 referring to it, said "that's one thing that made it bad for me."
Clemens testified that in November, 1942, Hull owed him, in addition to the 1942 installment money, $150 for a bull which he purchased from Clemens the preceding year. In October of 1942 Clemens discovered, so he swore, that the Hulls were selling their cattle and he thereupon suspected that they intended to quit the property which they had undertaken to purchase from him. Having made that surmise, Clemens tried to find Hull for the purpose of inquiring of him as to his intentions. Presently Clemens encountered Hull upon one of the public roads. We now quote from Clemens' testimony:
The conversation ran on, but it produced nothing for application upon the purchase price of the bull nor for discharge of the current installment payment upon the contract which the parties had signed in 1939. We *538 quote further from Clemens' version of the conversation:
We are of the opinion that Clemens' testimony reflects the truth concerning the conference which occurred immediately prior to the Hulls quitting the land.
November 23, 1942, Clemens, as plaintiff, instituted an action in the Circuit Court for Coos County against the Hulls, as defendants, in which he prayed for judgment for the unpaid balance of the purchase money, $6,480. We now return to Hull's testimony:
We shall presently return to the Coos County suit, but, in the meantime, we will take note of some other developments. Hull had not paid the 1942 taxes when *539 he left the property, and after leaving he made no inquiries as to whether anyone was discharging them. Although the signatures to the contract between the Hulls and Clemens had been acknowledged before a notary public, Hull did not record the instrument in any of the public records. He conceded that he made no investigation to determine whether anyone had taken possession of the property after he left, and that likewise he sought no information as to the condition of the property. After leaving the property in 1942 and until returning in 1948, the Hulls never asserted any interest in it.
The above was the state of affairs in November, 1942, when Clemens filed the action in the Circuit Court for Coos County demanding judgment for the unpaid balance of the purchase money, $6,480. Clemens' complaint quoted in full the contract which he, as vendor, and the Hulls, as vendees, signed October 16, 1939. It acknowledged payment by the Hulls of the initial payment of $1,500 and the installments, each in the sum of $810, which the Hulls had paid in the years 1940 and 1941. It did not tender a deed to the Hulls. The latter appeared in the case through counsel and filed a general denial. June 12, 1944, the cause was called for trial. At that time the Hulls, through their counsel, confessed Clemens' right to a judgment and on that day the circuit court entered judgment in favor of Clemens and against the Hulls for $6,480, together with costs and interest. When the Hulls confessed the right of Clemens to judgment, they did not ask that he deliver a deed to them or that provision be made whereby they could secure one upon payment of the judgment. In truth, if a conveyance, or provision for one, was discussed when the judgment was confessed, no witness mentioned the fact. Likewise, at that juncture Hull, *540 notwithstanding the fact that he now claims that the contract remained in effect after the judgment was entered, did not record it. Shortly after entry of the judgment, a writ of execution was issued which was levied upon some cattle belonging to the Hulls. The subsequent execution sale yielded a negligible amount for application upon the judgment.
According to Hull, the property was worth no more in June, 1944, when the court entered judgment in the Coos County case, than two years before, when the action was filed.
It was the judgment, described in the preceding paragraphs, which the decree entered in the case at bar required Clemens to satisfy upon the public records. According to the transcript, the satisfaction has been entered.
The tract of land which is the subject matter of this action is irrigated hay land. Before the Hulls abandoned its possession they used it for pasturing cattle and raising hay. The property, its grass, fences and irrigating facilities require frequent care. After leaving the property in November of 1942, the Hulls gave no attention whatever to it and, as we have said, were continuously away from Harney County until the summer of 1948.
Seven days after the entry of the Coos County judgment, Mrs. Hull filed a petition to be adjudged a bankrupt. Her schedule of assets did not mention the property involved in this proceeding, and, as the brief of Hull's counsel concedes, she "did not claim an interest in the property as an asset." June 27, 1944, she was adjudged a bankrupt. Before the action now under review was instituted, Mrs. Hull assigned her interest, if any, in the property involved in this action to her husband.
*541 In the middle of February, 1943, Clemens resumed possession of the property. February 12, 1945, he and the Carters entered into an agreement whereby the Carters agreed to purchase the land in question for the sum of $7,000, and Clemens agreed to convey it to them when they had paid the purchase price. The Carters made an initial payment of $2,000 and were bound by the agreement to discharge the balance of $5,000 in annual installments of $625, together with interest. Simultaneously with the signing of the contract, the Carters took possession of the property. September 13, 1948, the last installment of the purchase money was paid and thereupon Clemens delivered to the Carters a warranty deed which conveyed to them title to the land. The Carters had no information whatever concerning the Hulls or of the agreement which they and Clemens had signed October 16, 1940.
In the summer of 1948 Hull called upon Clemens and offered to pay the balance of the purchase price. He demanded a deed to the premises.
March 14, 1949, Hull, as plaintiff, instituted the proceeding now under review. As we have said, he prayed for specific performance, or, in the alternative, for damages if specific performance was denied.
We have mentioned the fact that, upon Hull's motion, the circuit court dismissed the suit as to the Carters. Before the motion was made, Hull had satisfied himself that the Carters had purchased in good faith, without notice and for value. At the close of the trial, the court dismissed the suit as to Clemens on the ground that the plaintiff was barred by laches, but the court indicated a belief that, apart from laches, the evidence failed to disclose that Hull had suffered damage. Notice has been taken of the fact that the court ordered Clemens to satisfy of record the judgment *542 which he had obtained against the Hulls and that the satisfaction has been made.
The foregoing, we believe, states the material facts, with the exception of one which we will now mention. The plaintiff testified that in the fall of 1945 the price of cattle began "to climb" and that since "land valuation in Harney County lots of times is based on markets for cattle," the market value of land in the county before long began to ascend. In 1947 a friend told him, so Hull testified, "Land is booming in Burns." Burns is the county seat. The friend added, according to Hull, "Ranches are selling for terrific prices, $100 an acre." Hull testified: "Of course, that made me feel pretty good." Before long he obtained an attorney's services and, with the aid of the latter, procured a loan of money. Then the attorney and Hull called upon Clemens and made the offer to pay the balance of the purchase price of the land which precipitated this suit.
The plaintiff assigns as error the dismissal of the complaint against the defendant Clemens and the refusal of the court to award damages. The grounds of the plaintiff's contentions are (1) the contract is valid and enforceable; (2) by bringing an action upon the contract in Coos County and obtaining a judgment for the balance of the purchase price, Clemens "irrevocably elected to affirm the contract"; (3) the rights of the plaintiff were not merged in the Coos County judgment; (4) the plaintiff is not barred by laches or the statute of limitations; and (5) the defendant is liable for damages for his inability to convey to the plaintiff.
Proceeding with his belief that the contract of 1939 [between Clemens, as vendor, and the Hulls, as vendees,] was still in effect after the Coos County judgment was rendered, Hull claims that Clemens breached *543 it in the summer of 1948 when he refused to convey title to Hull after the remainder of the purchase money had been tendered; hence, his demand for damages.
We shall now consider the principles of law which govern the case.
In Sievers v. Brown, 34 Or 454, 56 P 171, 45 LRA 642, it is said:
1, 2. When Clemens, as vendor, and the Hulls, as vendees, signed the contract out of which this suit arose, and the Hulls made the initial payment of $1,500, the legal title reposed in Clemens, but an equitable interest was transferred to the Hulls. The contract conferred upon the Hulls a right to demand a deed to the premises whenever they paid the full contract price. Since the equitable interest of a vendee is always measured by the amount which he has paid upon the purchase price, the interest of the Hulls had increased somewhat by November of 1942 when they moved off the property.
In reverting to a fact which we have already mentioned, we repeat that when the Hulls quit the property Hull wished to abandon it and to surrender the contract. As a witness, he emphasized his statement to that effect by swearing, "There was no alternative."
From the foregoing we see that when the Hulls vacated the property they had an equitable interest in it, and Clemens held the legal title awaiting the day *544 when they would discharge the full purchase price. But when the 1942 installment payment fell due, Hull had made up his mind that he would not pay it and that he would proceed no further with performance of the contract. Such was the condition of affairs when the Hulls left the property.
The preceding paragraphs state in narrative form the facts from which we must determine whether or not the Hulls lost their interest in the property through abandonment. The following is a summary of those facts: (1) In November, 1942, before the Hulls quit the property, Hull informed Clemens that he and his wife were leaving the property and that they desired to surrender their contract of purchase; (2) after the Hulls had quit the property they made no more payments upon the purchase price of the property and never expressed any intentions concerning payments upon it until Hull, in 1948, offered to pay the remainder of the purchase price; (3) after the Hulls left in November of 1942 they did not return to Harney County until midsummer of 1948; (4) when they quit the property, the current taxes were unpaid and they did not thereafter pay them nor any of the subsequent levies; (5) although the property required frequent attention, the Hulls gave it none after leaving and made no provision whereby it would receive any; (6) after (a) Hull's offer to surrender the contract had been rejected, (b) the Hulls had left the property, and (c) the Hulls were sued for the purchase money, Hull made up his mind to abandon the property; he explained, "There was no alternative"; (7) when the Hulls confessed the right of Clemens to judgment in the Coos County case, they did not ask that a deed be issued to them; (8) in the schedules which Mrs. Hull filed in her bankruptcy proceeding she did not mention this property *545 nor claim any interest in it; her interest, if any, was the equal of Hull's; (9) the answer which the Hulls filed in the Coos County action, consisting of a general denial, was a denial of the contract under which Hull now claims an interest in the property; (10) even after the Hulls had vacated the property, they did not record the contract which they and Clemens had signed.
In Jennisons v. Leonard, 88 US 302, 22 L ed 539, the court said:
It will be observed that the court recognized that the equitable interest of a vendee may be extinguished by "an abandonment".
We think that other observations made by the court in Jennisons v. Leonard, supra, are germane to the case before us, and will now give that decision further attention. The subject matter of the dispute between the parties in that case was timber cut from a tract of timberland of which Leonard [plaintiff and respondent] was the owner and vendor. The defendants and appellants, Jennisons, were mortgagees of one Cole, who was the vendee. When Cole could no longer perform his contract, the Jennisons succeeded to his rights. The purchase contract required Cole to pay the purchase price in installments, the amount being affected *546 by the quantity of timber cut. We now quote from the decision:
When the Jennisons abondoned possession, Leonard, the owner, resumed possession of the land. At that time there was upon the ground a considerable quantity of timber which Cole had felled. Leonard took possession of it. When those acts occurred, $5,280 was unpaid upon the contract of purchase. In order to realize that sum, Leonard had the downed timber manufactured into lumber. The Jennisons seized the manufactured lumber under a claim that they were the owners of the logs out of which it had been manufactured. The dispute between the parties was centered in the ownership of the logs, and in order to determine their ownership it was necessary to determine whether the equitable interest created by the contract had been terminated before Leonard reentered into possession. We now turn again to the language of the decision:
In affirming judgment for Leonard, the vendor, the decision said:
The following is taken from Thompson on Real Property, Perm ed, § 2565:
Substantially the same is said in Dober v. Ukase Investment Co., 139 Or 626, 10 P2d 356, Bitney v. Grim, 73 *548 Or 257, 144 P 490, and Huffman v. Smyth, 47 Or 573, 84 P. 80.
The authorities seem to agree that one who possesses a perfect legal title cannot lose it by abandonment. 1 Am Jur, Abandonment, § 6, p 5, and Thompson on Real Property, Perm ed, § 2567. However, it is well established that an unperfected equitable title may be lost by abandonment. Mineral Land Investment Co. v. Bishop Iron Co., 134 Minn 412, 159 NW 966, LRA 1917D 905. This court recently held in Powers v. Coos Bay Lumber Co., 200 Or. 329, 263 P2d 913, that the rights conferred by an easement may be extinguished by abandonment. That decision also held that in abandonment time is an immaterial element. It pointed out that the moment intention to abandon unites with acts of relinquishment, the abandonment is complete.
Oviatt v. Big Four Mining Co., 39 Or 118, was an appeal by the plaintiff from a dismissal of a suit to enjoin a diversion of water from a ditch. The defendant's predecessors were the owners of land, used for mining, and one Courtney who claimed by a land contract. Courtney gave a note for the purchase price and received a bond to secure the delivery of a deed upon payment of the note. Courtney entered upon the land, constructed a ditch and took water flowing from a creek. A year later, Courtney left the land never to return, leaving a man on the premises to "look after things." Fifteen years later the plaintiff diverted water from Courtney's ditch, and a few years later the defendant laid claim to the water on the basis of a conveyance from Courtney and by purchase at a tax sale of the prior owner's interest. The court reversed for the plaintiff on the ground that the defendant's predecessor abandoned the property to which the water *549 rights were appurtenant and that the plaintiff had acquired the water by appropriation. In so doing, it said:
It should be noted that Courtney's interest was equitable.
3. In the case at bar, the Hulls' title an unperfected equitable title was inchoate when they quit the property. Therefore, it was subject to abandonment.
As we have seen, Hull, as a witness, declared that after the Coos County case was filed he decided to abandon the property. He makes no claim that he misspoke himself. The evidence indicates that the Hulls had reached that conclusion before the 1942 installment payment fell due. When Clemens called upon Hull and asked for the payment, Hull declared that he wished to vacate the property and surrender the contract, but, if his testimony concerning the incident reflects the truth, he did not then use the word "abandon". His actions about the time when the 1942 payment fell due are strongly indicative of abandonment. It will be recalled that the Hulls were then selling their cattle and that they had met with financial misfortunes. According to *550 Clemens, Hull told him that he was "through" with this property and "through" with Harney County. After they left Harney County they were indifferent to the property.
We think that the evidence presented in this case shows something more than mere neglect by the Hulls of the land which they had undertaken to purchase. In our opinion, it also shows something more than nonuser. It establishes nonuser coupled with an intention upon the part of the Hulls to release their rights. In short, it manifests intention to abandon, together with actual acts of abandonment.
Very likely Hull's plight, when the day came to make the 1942 payment, was an unfortunate one. He had suffered severe financial reverses and had resorted to the sale of his cattle. Seemingly, when the time came to make the 1942 payment, he was avoiding Clemens. His own testimony indicates that about that time he was trying to avoid the service of process upon him in a case which a man by the name of Jordan had filed. It is not unusual in situations of that kind for the victim of misfortune to pull up his stakes and move on to another place which offers greater hope. That is what we believe Hull did. Without reviewing the testimony further, we express our belief that the evidence clearly indicates that in November of 1942 the Hulls abandoned the land and all of their rights in it. Hull moved on to his business venture in Coos County.
4, 5. Sometime after the entry of the Coos County judgment, land values in Harney County underwent startling inflation. When that development occurred, Hull bethought the recent past and seemingly looked around in an effort to regain his hold upon the land which a few years previously he had walked away from, but which now gave promise of easy wealth. Soon he *551 secured the services of a capable lawer and then got the promise of a loan. With money in sight with which to discharge the old balance of the purchase price, a road was mapped out whereby it was thought the property could be recaptured. The line of approach was to consist of a theory that when Clemens brought the Coos County action for the balance of the purchase price he had thereby elected to affirm the contract. The plan was to argue that an election to affirm was inconsistent with a claim of abandonment, but the argument was foredoomed to failure. Abandonment has the novel phase that it is entirely unilateral it requires action by only the possessor of the title, right or equity which it is proposed to abandon. Rights and equities are never abandoned in favor of anyone. Therefore, Clemens' attitude was immaterial.
We are satisfied that the Hulls abandoned their title to the property. They had no interest whatever in it when Hull appeared in 1948 and tendered the purported balance. It is, therefore, unnecessary to consider other contentions advanced by the parties.
The decree of the circuit court is affirmed. Costs and disbursements will be allowed to neither party. | 9e169bd00972ec75cd07e20ea34e9a41eb264679cedc5e7bd40aec0459264157 | 1954-02-24T00:00:00Z |
1e1da5e3-f4c2-4edd-a7b7-87bac213e1d0 | Ladd v. General Insurance Co. | 236 Or. 260, 387 P.2d 572 | null | oregon | Oregon Supreme Court | Reversed and remanded December 18, 1963.
Petition for rehearing denied January 14, 1964.
*261 Gordon G. Carlson, Roseburg, argued the cause for appellants. On the brief were Yates, Murphy & Carlson, Roseburg.
William L. Lasswell, Roseburg, argued the cause for respondents. With him on the brief were Kelly & Garrison, Roseburg.
Before McALLISTER, Chief Justice, and ROSSMAN, O'CONNELL, GOODWIN and LUSK, Justices.
REVERSED AND REMANDED.
GOODWIN, J.
After bringing without success an action upon a policy of fire insurance, the plaintiff brought a second *262 action upon an alleged settlement agreement. In the second action, the plaintiffs received favorable consideration from the jury in answer to certain interrogatories, but these were set aside upon motion of the defendant. The trial court ruled that the first judgment was res judicata. The plaintiffs now appeal from a judgment entered in favor of the insurance company.
The parties were identical in both actions. The only issue is whether the trial court in the second action properly applied the doctrine of res judicata or the related rule concerning election of remedies. There is no substantial dispute concerning the facts that bear upon these procedural issues.
The plaintiffs' building was damaged in an explosion. The loss was one covered by the defendant insurer. In adjusting the loss, the parties arrived at a mutually satisfactory settlement in the amount of some $51,680.44, which was paid. However, they kept open an undetermined element of damage to certain concrete walls. The exact amount of such loss, if any, was not possible of accurate appraisal until after certain cleanup work could be completed. It was agreed that the appraisal was to be made at a later date by an engineer to be selected by the insurer. In the event the walls did not pass inspection, the insurer agreed to pay the additional loss as appraised, provided, however, that the liability in no event was to exceed $3,900. In the event that the walls satisfied the engineer, it was agreed that the insurer would have no further liability under its policy. (We express no opinion upon the meaning of this agreement. Our summary of it here is intended only to provide a background for the narrow issues which are presented in this appeal.) The only memorandum of the agreement *263 was a notation typed on the proof-of-loss form used in the processing of the principal claim.
The parties subsequently found themselves unable to agree upon the duty of the insurer under the memorandum.
The insurance policy contained a provision that no action would lie against the insurer under the policy unless such action were commenced within one year of the date of any loss.
More than one year after the loss was sustained, but within the general period of limitation for actions arising out of contract, the plaintiffs brought action upon the insurance policy.
1. The plaintiffs pleaded the policy of haec verba, as well as their proof of loss which made reference to the disputed $3,900. They prayed judgment in the sum of $3,900, plus attorneys' fees. Attorneys' fees are allowable in certain actions to recover upon insurance contracts. ORS 736.325. The insurer alleged the expiration of the period of limitations contained in the insurance policy. The plaintiffs replied that the insurer was estopped to assert the defense of limitations. (The plaintiffs claimed that they had relied upon certain representations by the insurer that litigation would not be necessary.)
The first case went to trial on the issues thus framed. The trial court found insufficient evidence to prove that the plaintiffs had been tranquilized by the insurer. There was, therefore, no estoppel. Judgment was thereupon entered for the insurer on the ground that the action had not been commenced within the time limited by the contract sued upon.
2. The plaintiffs did not appeal. There is, therefore, no occasion at this time to speculate upon the correctness of the first judgment. Right or wrong, it is *264 final. However, it decided only that the action on the insurance policy was barred by the running of time.
In this second action, the plaintiffs seek to recover upon the alleged settlement agreement instead of upon the insurance policy. The insurer contends that the plaintiffs are now barred by their election of a remedy in the first action, and also by the doctrine of res judicata. The two doctrines have some similarities, but they are not the same.
3, 4. Election of remedies ordinarily characterizes the situation in which a plaintiff who has two or more available avenues to the same general relief pursues one to judgment. See Note, 36 Harv L Rev 593 (1923). He may thereafter be precluded from pursuing the others. Union Trust Co. of Spokane v. Wiseman, 10 F2d 558 (D Or 1926); see Annotation, 6 ALR2d 10, 49 (1949). When enforced, the rule forbids subsequent litigation, either to enhance a meager victory won in the first effort or to rehabilitate a defeat suffered there. See Jesse et ux. v. Birchell et ux., 198 Or 393, 400, 257 P2d 255, 37 ALR2d 952 (1953). Sometimes courts describe the plight of such a plaintiff as "estoppel by election," although this nomenclature tends further to obscure the notoriously indistinct boundaries between waiver and estoppel. See Ewart, Waiver Distributed (Harv Univ Press 1917), especially Ch II, "`Waiver's' Aliases," and Ch V, "Election."
5. The election of one remedy where several remedies are available is a choice, shown by an overt act, between two rights. The pleader is barred, however, only in cases where initially there were two efficacious remedies. Estate Counseling Service v. Merrill Lynch, Pierce, etc., 303 F2d 527 (10th Cir 1962). In such a situation it would be unjust to vex the defendant twice *265 for the same debt or wrong. Where there was in fact only one remedy, however, an abortive election is not fatal. Cf. Sheppard v. Blitz, 177 Or 501, 162 P2d 519 (1945). There an ill-fated election to sue in equity was held no bar to a subsequent action at law, because the first case, remanded for procedural reasons and later abandoned by the plaintiff, did not reach an important question on the merits. The modern rule is no doubt represented by Schenck v. State Line Telephone Co., 238 NY 308, 311, 144 NE 592, 35 ALR 1149 (1924), where Mr. Justice Cardozo stated:
6. In the case now before us, the plaintiffs have learned that only one remedy was available to them. Accordingly, this is not a proper case in which to invoke the rule of election of remedies.
7. The doctrine of res judicata is founded upon the policy that one should not twice litigate, on the merits, either as plaintiff or defendant, the same cause of suit or action. The second attempt to sue thus commonly presents the question whether there is in the new litigation a new cause of action or merely a reappearance in disguise of an old and discredited cause of action. See Jarvy v. Mowrey, 235 Or 579, 385 P2d 336 (1963). Restatement, Judgments, § 45 (1942).
In one respect, the employment of the doctrine of res judicata is similar to that of election of remedies. Courts freely invoke res judicata to prevent double recovery where the claimant has already collected once. Grant v. Yok, 233 Or 491, 378 P2d 962 (1963). But the doctrine is more sparingly applied where the *266 claimant has had no recovery. This explains why, in the same jurisdiction, one case will say for the purpose of res judicata that two causes of action are the same if recovery was had in the first case, while an otherwise indistinguishable case will hold, when recovery has not been had, that the causes of action are different. See Schopflocher, What is a Single Cause of Action?, 21 Or L Rev 319 (1942).
In the case at bar, it is necessary to consider whether the so-called settlement agreement was a new contract, and thus the foundation of a different cause of action than that sued upon in the first action (upon the insurance contract). If in fact the parties agreed to make a new contract, in the nature of an accord, and expressed such agreement in the words found on the proof-of-loss form, then a breach of that agreement by either of the parties could give rise to new legal rights. Thus, if a debtor (here the insurer) should breach the contract, the creditor (the insured) could sue for that breach. If the creditor breached the accord, while the debtor's original duty would not be discharged, the debtor would acquire a right of action for damages for the breach of the accord or, if practicable, the alternative remedy of specific enforcement. See Restatement, 2 Contracts, § 417 (c) (d) (1932); 6 Williston, Contracts 5207, § 1848 (rev ed 1938).
If, for example, the insurer had tendered the agreed payment but the insured had refused the tender and then had sued upon the original policy in order thereby to obtain some real or supposed advantage, such as attorneys' fees, the commencement of such an action might be either a failure of consideration or a breach of the insured's promise of temporary forbearance, implied in the accord. If, on the other hand, the insurer *267 wrongfully refused performance according to the terms of an executory accord, similarly that would be a breach of the accord.
8. Where one party can prove a valid accord, and a breach thereof by the other, the aggrieved party may then theoretically seek recovery upon the original contract, if it still should have vitality, or upon the new one. In this case, time has run against the former. There remains only the latter contract. It, however, is free of the defenses such as the one-year period of limitation that might have been available to the insurer under the original insurance policy. See, e.g., Stockton etc. Works v. Ins. Co., 98 Cal 557, 33 P 633 (1893).
9. We hold that, if there was in fact a new contract, the second action, being upon the new contract, would be founded on a new cause of action and would not be barred as an attempt to relitigate the old one. West. Log. Mach. Co. v. N.U.F. Ins. Co., 136 Or 549, 552, 229 P 311 (1931).
Since the two cases here involved were founded upon different causes of action, the doctrine of res judicata does not bar the second action. The defendant urges, however, that the court in the first action made some oblique reference in its memorandum opinion to the efficacy of the settlement agreement to create new legal rights. (The court commented that there was "no accord and satisfaction," but only an "executory accord.") There was, however, no decision by the court on the rights that might or might not exist under the settlement agreement. Perhaps there could have been such a decision, but there was not. The plaintiffs had managed to create complete chaos in the pleadings, but it does not follow from this development that there was a decision on the point now asserted to be res judicata.
*268 The record is not in such a condition that we can enter judgment in this court under Oregon Constitution, Art VII, § 3. Unless the parties can agree upon the facts, therefore, another trial appears to be inevitable.
Reversed and remanded. | 34df34f6d4a8044a4c2450e6b5dbca49f7db93b5936968e96d9587cef166da54 | 1963-12-18T00:00:00Z |
da2fa166-1dd0-44cb-8d9a-f9c28c4fee00 | State v. Donovan | 305 Or. 332, 751 P.2d 1109 | null | oregon | Oregon Supreme Court | 751 P.2d 1109 (1988)
305 Or. 332
STATE of Oregon, Respondent On Review,
v.
Steven Daniel DONOVAN, Petitioner On Review.
DC 53517 S; CA A40898; SC S34079.
Supreme Court of Oregon, In Banc.
Argued and Submitted January 20, 1988.
Decided March 22, 1988.
William Uhle of Thuemmel & Uhle, Portland, argued the cause and filed the petition for petitioner on review.
*1110 Margaret E. Rabin, Asst. Atty. Gen., Salem, argued the cause for respondent on review.
JONES, Justice.
Defendant appealed his conviction for driving under the influence of intoxicants (DUII) to the Court of Appeals, contending that the trial court erred in denying his motion to dismiss the charge on the ground of collateral estoppel. The Court of Appeals affirmed defendant's conviction. 85 Or. App. 237, 736 P.2d 570 (1987). We affirm the decision of the Court of Appeals.
Defendant argues that the issue of his intoxication was decided in his favor at a prior probation revocation hearing and that the state cannot relitigate that issue in this DUII conviction. Thus, the issue presented is the extent to which a probation revocation hearing determination may affect a subsequent criminal trial when a litigated issue in the former proceeding is identical to one of the issues in the later proceeding. The specific questions in this case are, first, whether a decision on any issue in a probation revocation hearing precludes relitigation of the issue in a subsequent criminal trial and, second, whether the fact in dispute here, that defendant did not ingest a prohibited substance, was "determined" in the probation revocation hearing.
This court has foreclosed relitigation of issues decided in a prior action when both cases were civil court proceedings, Waxwing Cedar Products v. Koennecke, 278 Or. 603, 564 P.2d 1061 (1977); Bahler v. Fletcher, 257 Or. 1, 474 P.2d 329 (1970), when both actions were criminal, State v. George, 253 Or. 458, 455 P.2d 609 (1969); State v. Dewey, 206 Or. 496, 504, 292 P.2d 799 (1956), and when the first action was criminal and the subsequent action was civil, State Farm Fire & Cas. v. Reuter, 299 Or. 155, 700 P.2d 236 (1985). This court also has considered preclusion of issues in a criminal case that were first decided in an administrative hearing, State v. Ratliff, 304 Or. 254, 744 P.2d 247 (1987), but did not allow preclusion in that case. North Clackamas School Dist. v. White, 305 Or. 48, 53, 750 P.2d 485 (1988), decided that decisions of the Workers Compensation Board could be conclusive in subsequent actions before the same tribunal, although the issue in dispute in that case had not been decided in the first case. In reaching these decisions, this court compared the two adjudicative forums, the nature of the decisions and the procedures by which they were reached, and the parties' interests and opportunities to litigate the actions. The basic inquiry, of course, is whether it is fair to bind a party in the present action to a determination made in some other dispute.
Here, the tribunal in both cases is the circuit court. The present action is a criminal prosecution. It was preceded by a probation revocation hearing, which is not easily categorized as either criminal or civil. Although a probation revocation hearing is not a criminal trial, it does invoke the criminal sanctions pending against the defendant. As in other criminal matters the district attorney represents the state in an action against an accused.
Because probation revocation hearings do not usually adjudicate guilt or innocence of a criminal offense, the burden of proof is the lower standard used in civil cases, preponderance of the evidence. See State v. Eckley, 34 Or. App. 563, 579 P.2d 291 (1978); State v. Fortier, 20 Or. App. 613, 533 P.2d 187 rev. den. (1975). This lower standard of proof would not, of course, permit the state to rely on a fact proved by a preponderance in a later criminal case. But the state's failure to prove a fact by a preponderance may foreclose its later attempt to prove it beyond a reasonable doubt.
Probation revocation hearings are conducted with less formality than a criminal trial. ORS 137.550(4) provides that the court that imposed the probation may, "after summary hearing," revoke the probation.[1]*1111 Gebhart v. Gladden, 243 Or. 145, 150, 412 P.2d 29 (1966), explains:
We need not explore the limits of how "summary" a hearing may be and still foreclose relitigation of the same issues in another case. Certainly if a judge on his or her own motion calls in a probationer for a hearing, the state is not necessarily a willing party and would not subsequently be foreclosed from litigating the same issues considered and decided by the court acting on its own. But here the state instigated the proceedings, the parties presented evidence, cross-examined witnesses, and were represented by counsel before an impartial decision-maker. These are procedural safeguards of sufficient formality to allow issue preclusion.
Because defendant seeks to use collateral estoppel against the state, the state's incentive to litigate the first action is relevant. The state requested that issues relevant to a subsequent criminal trial be determined in the probation revocation hearing. From the state's point of view, the incentive to litigate may be less in a probation revocation hearing if the only issue concerns violations unrelated to any new criminal charge. But if the decision to revoke or modify probation depends on proof of an element of a new crime, the state has an incentive to prove the fact. Here, the state sought to prove defendant's prohibited use of alcohol or drugs, a single issue essential to both the probation revocation and to the subsequent criminal trial.
ORS 43.160 cryptically describes collateral estoppel as follows:
In civil cases this court has often stated that the judgment in a former action is conclusive in a subsequent action between the parties as to issues actually litigated and determined in the prior action if their determination was essential to the judgment. North Clackamas School Dist. v. White, supra, 305 Or. at 53, 750 P.2d 485; State Farm Fire & Cas. v. Reuter, supra, 299 Or. at 158, 700 P.2d 236; Dean v. Exotic Veneers, 271 Or. 188, 192, 531 P.2d 266 (1975).
In criminal actions where the defendant has prevailed in a former action, the doctrine of issue preclusion often is of limited aid to a defendant in a subsequent action. Where an acquittal is unaccompanied by findings on the record and there are several theories for acquittal, it will not always be apparent whether the prosecutor failed to prove a single essential element or every essential element of a crime. Lugar, Criminal Law, Double Jeopardy and Res Judicata, 39 Iowa L Rev 317, 332-33 (1954), cited in State v. Dewey, supra, 206 Or. at 511, 292 P.2d 799.
*1112 In State v. George, supra, 253 Or. at 465, 455 P.2d 609, and State v. Dewey, supra, 206 Or. at 508, 292 P.2d 799, this court stressed that the key inquiry is whether the factfinder "necessarily determined" a particular issue in a former proceeding.
If the jury returns a general verdict for the defendant, no single element of an alleged crime is "necessarily" determined against the state and for the defendant. For this reason, Dewey stressed the importance of the record showing that an issue was in fact determined:
Cf. Sealfon v. United States, 332 U.S. 575, 68 S. Ct. 237, 92 L. Ed. 180 (1948) (where jury's finding of innocent in prior trial necessarily included a determination that facts essential to conviction on a second offense did not exist, res judicata is a valid defense).
We turn to the trial record to see what facts were decided in this case. On November 30, 1985, defendant was arrested for DUII. At the time of the stop, apparently triggered by defendant's erratic driving, he smelled of alcohol, his speech was slurred, his movements were uncoordinated, he swayed visibly while he stood and he performed field sobriety tests poorly. He was arrested for DUII. Defendant was taken to the Clackamas County Jail where he recorded a .17 blood-alcohol content on the intoxilyzer test. At that time, defendant admitted drinking a "white Russian" and smoking some marijuana.
At the time of his arrest, defendant was on probation to Clackamas County Community Corrections for his fourth DUII conviction. As conditions of probation, defendant was obliged not to commit any major traffic offenses, not to drive without being licensed and insured, not to consume any alcoholic beverages, and not to use any controlled substance without a valid prescription.
After his November 1985 arrest, his probation officer filed a probation violation report with the Clackamas County District Court alleging that defendant was in violation of his probation in the following particulars:
A probation revocation hearing was held on March 28, 1986. At the beginning of the hearing, the fabric for what should have been a routine proceeding became snarled. The record is, to put it mildly, a mess, and most difficult for a reviewing court to unravel. First, the deputy district attorney did not claim any restrictions on what the state intended to prove, reporting to the court that "this is the date set for hearing on allegations of probation violation. The state is ready to proceed." The deputy district attorney then called an assistant to defendant's probation officer. This assistant had no firsthand knowledge *1113 of any facts, merely testifying from the probation officer's report, which included a police report. During direct examination of this assistant probation officer, the state at first made no reference to any limitation pertaining to the four alleged violations, but elicited hearsay information that defendant had consumed alcohol, operated a motor vehicle without a valid license and insurance, used a controlled substance and failed to attend AA meetings. After eliciting this information, the deputy district attorney stated to the witness: "With respect to the allegation that the defendant consumed intoxicants, first of all I would ask that you restrict your reply strictly to the consumption of intoxicants and not to any other violation at this time. What evidence did you have with respect to the consumption of intoxicants?" The witness read the police report that an intoxilyzer examination occurred on November 30, 1985, recording a blood-alcohol content of .17. This answer was directly relevant to the above allegation. No objection was made to this hearsay evidence. The deputy district attorney continued: "With respect to the allegation that defendant used controlled substances or possessed the same, what information do you have with respect to that information," to which the witness answered: "In talking with [the probation officer], in the report also, he stated to her that he'd used marijuana on (inaudible)." Again, no objection was made to this testimony.
We conclude from the above colloquy that the state was attempting to prove a probation violation concerning (1) the consumption of alcohol and (2) the use of a controlled substance by defendant at a time relevant to his arrest for DUII, but that the state was not going to attempt to prove the DUII case itself. In other words, the state elected to prove a violation of one or two of the conditions of probation, but a violation of either was necessarily an element of the DUII charge consumption of intoxicants or controlled substances.
Defendant's attorney commenced cross-examination with inquiry about defendant's license and insurance, but was interrupted by the deputy district attorney, who stated:
We fail to see how licensing and insurance relate to the DUII charge. In any event, the court responded:
Defense counsel then apparently agreed with the court by commenting:
We are perplexed. The purpose of the probation hearing was for the court to find whether defendant was in violation of his probation and, if so, whether to continue the probation or revoke it. We infer that the court decided not to make any findings as to the DUII charge at that time. At the conclusion of the probation revocation hearing, the court stated: "I'm not making any finding relating to the use of alcohol nor am I making any finding specifically to license or AA." Yet these allegations were the basis of the state's claimed probation violations: use of alcohol, use of controlled substances, invalid license and non-attendance at AA meetings.
The judge was at liberty to decline to make any findings at that time and to continue the probation until the disposition of the charges in a subsequent trial.[2] Alternatively, *1114 the judge could have made findings as to the charges and entered judgment. In this case, the judge stated that he would not make findings after hearing the evidence but then signed a document entitled "Disposition and Order," finding the defendant "not guilty."
The proceedings were tape-recorded, but the original tape of this proceeding was not in the record submitted to the court. All we have is someone's attempt to transcribe the tape. At the conclusion of the hearing, the state attempted to reopen its case, apparently to reintroduce the police officer's report and some intoxilyzer documents, to which defense counsel objected. The court stated: "I'm not going to reopen at this point. I'm not satisfied at this time that there is sufficient evidence from (inaudible) probation violation. There may be in the future." The court then continued with its statement about not making any findings as to any of the issues in the case, remarking: "The evidence is pretty clear, I don't think anybody has to make a finding relating to the (inaudible). So I'm going to enter a not guilty on the probation violation today. * * * I'm not saying you're guilty of these things by any means."
In sum, the state set out to prove several allegations, then attempted to restrict proof of some. The court refused to make findings as to any of the allegations, yet found defendant not guilty of any of the charged violations.
The proper procedure for a probation revocation proceeding is for the state to elect which allegations it intends to prove at the commencement of the proceedings so that both the court and the defendant will be apprised of the issues. If the court does not wish to consider certain allegations, the court should unequivocally so advise the parties. A person may be charged with a probation violation consisting of commission of a new crime, which a judge may wish to have determined by a full-blown trial rather than disposing of the issue in a probation revocation hearing. However, if the state elects and a judge agrees to conduct a probation revocation hearing that concerns any of the elements of the new offense, then collateral estoppel as set forth in ORS 43.160 will apply against the state if the judge finds that a necessary element is not proven at the hearing. If, for instance, a probationer is charged with armed robbery and the alleged probation violation is carrying a weapon at the time of the robbery and the probation hearing judge determines that no weapon was involved, then the state would be collaterally estopped from proving armed robbery in a subsequent trial.
In order to decide whether the probation is to be continued or revoked, the court usually should find whether the probationer is in violation of any of the terms of his or her probation. This decision should not be side-stepped by the court's refusing to make any findings. Such a refusal renders the proceedings useless and a waste of everyone's time. If the court elects to conduct a probation revocation hearing on specific violations, the court should make specific findings. As this court said in Barker v. Ireland, 238 Or. 1, 4, 392 P.2d 769 (1964):
This court amplified that statement in Barker in the later case of Perry v. Williard, 247 Or. 145, 147, 427 P.2d 1020 (1967):
However, if a judge conducting a probation revocation hearing departs from desired procedure by refusing to make findings, collateral estoppel does not result. An issue is precluded when a specific finding is made, not when the issue is not resolved for lack of a finding. At the end of the hearing the trial judge stated, "I'm not making any finding relating to the use of alcohol." He should have. He didn't. Therefore, the issue was not precluded for collateral estoppel purposes. We agree with the Court of Appeals that the general order disposing of the proceedings does not convert this specific refusal to make a finding into a finding.
The decision of the Court of Appeals is affirmed and the judgment of the trial court is affirmed.
[1] ORS 137.550(4) provides:
"The court that imposed the probation, after summary hearing, may revoke the probation and suspension of sentence and cause the sentence imposed to be executed or, if no sentence has been imposed, impose any sentence which originally could have been imposed. Except for good cause shown, if the hearing is not conducted within 14 calendar days following the arrest or detention of the probationer, the probationer shall be released from custody. A defendant who has been previously confined in the county jail as a condition of probation pursuant to ORS 137.540 shall be given credit for all time thus served in any order or judgment of confinement resulting from revocation of probation. In the cause of any defendant whose sentence has been suspended but who is not on probation, the court may issue a warrant and cause the defendant to be arrested and brought before the court at any time within the maximum period for which the defendant might originally have been sentenced. Thereupon the court, after summary hearing, may revoke the suspension of sentence and cause the sentence imposed to be executed."
[2] The ABA Standards for Criminal Justice contain recommended procedures for instances in which the alleged probation revocation is a new criminal offense. The ABA recommends that in such a case the revocation hearing be stayed until after the disposition of the criminal charge unless the probationer is detained, in which case "such a stay may be inappropriate and the detained probationer should have a right to require a prompt final revocation hearing." The ABA reasons that given the inherent informality and the lower burden of proof in such proceedings, it is not good practice to allow the prosecution to attempt to achieve in a probation revocation hearing what it could not in a criminal proceeding. The ABA adds "one qualification":
"Where the alleged criminal conduct also involves an incidental violation of the conditions of probation, action on the violation need not be deferred. For example, where the probationer is accused of illegal drug sales or possession, it should not be necessary to delay the revocation hearing if the condition of probation was abstinence from the use of drugs and undisputed medical evidence demonstrated continued use * * *. Testimony by the probationer at the hearing, however, would be privileged * * *." 3 ABA Standards for Criminal Justice, Standard 18-7.5(f), Commentary at 18:535 (1978). | 73db095eaba755345db109df0909904177e050cace4a3be7343ebcc586921162 | 1988-03-22T00:00:00Z |
6e69d28d-32ae-411c-9871-eccc046a54d1 | Bursell v. Brusco | 203 Or. 37, 275 P.2d 873 | null | oregon | Oregon Supreme Court | Reversed November 3, 1954.
Petition for rehearing denied December 22, 1954.
Verne W. Newcomb argued the cause for appellants. With him on the briefs were Sabin and Malarkey, Alton John Bassett and Ell M. Roston, of Portland.
Francis F. Yunker argued the cause for respondent. *38 On the briefs were Yunker, Fewless & Hannam, of Portland.
Before LATOURETTE, Chief Justice, and WARNER, ROSSMAN, LUSK and BRAND, Justices.
REVERSED.
WARNER, J.
This suit was brought by the plaintiff Giacomo Brusco, sometimes known as Jim Brusco, against his sons Mike and Emanuel Brusco and their respective spouses for the cancellation of a deed recorded May 27, 1941, wherein plaintiff was grantor and defendants were grantees, and for a further decree that plaintiff was the sole owner of the property free and clear of any claim of the defendants. Plaintiff died on or about June 1, 1953, during the pendency of this appeal. He was then 82 years of age. Helen Bursell, as the administratrix of his estate, was substituted in his stead. From a decree in favor of plaintiff, the defendants appeal.
Since sometime in 1909, plaintiff had been the sole owner of four lots in Portland, Oregon. He alleges in his complaint that on May 27, 1941, he attempted to convey the property to the defendant sons and their respective wives, giving each son and his wife an undivided interest by the entireties but reserving a life estate for himself. The deed provided that the grantees would pay all taxes "heretofore or hereafter levied or assessed against said four lots" and that by the acceptance of the deed the defendant sons agreed to support the grantor, their father, "to the extent and under the circumstances as provided by law."
As a basis for the relief prayed for, plaintiff alleged in substance the failure of the grantees to comply with the provisions of the deed in the following particulars: *39 (1) to support the grantor; (2) to pay taxes assessed against the property; and (3) to suffer grantor to enjoy undisturbed the privileges and benefits of his life estate without intrusion of grantees. The most serious question presented to us by this appeal is to determine whether or not plaintiff had any title to convey on May 27, 1941.
Multnomah county foreclosed a lien for delinquent taxes against plaintiff's property by a decree dated May 18, 1940. The county became the purchaser and thereafter held the property subject to the owner's right of redemption for a period of one year from and after the date of that decree. ORS 312.120. In the instant matter this would be May 18, 1941.
ORS 312.200 (§ 110-917, OCLA) provides that "properties not redeemed within the one year period prescribed by ORS 312.120 shall be deeded to the county by the tax collector" and that "All rights of redemption, with respect to the real properties therein described, shall terminate on the execution of the deed to the county."
1. Just how soon after May 18, 1941, the sheriff executed the deed required by ORS 312.200 we do not know. However, the exact date of the execution and delivery of the deed from the sheriff to the county becomes an item of secondary importance in this matter, for we are satisfied from the record that the deed from the sheriff to the county was delivered before May 27, 1941, and that plaintiff's rights to redeem the property and all his right, title and interest therein were extinguished prior to May 27.
What, if anything, did plaintiff have to convey at the time of the delivery of his deed? The deed was dated May 9, 1941, and acknowledged before Karl Herbring as notary public on the same date. The *40 record is utterly silent on what happened to the deed between May 9 and May 27, the date of recording. There is nothing to contradict the testimony of the defendant sons that their first knowledge of the deed in its form as recorded was when it was received in the mail at the home of Emanuel Brusco on or about June 3, 1941, addressed to both defendants and where it had apparently been sent by the county clerk after recording. Who caused the deed to be recorded, who paid the recording fee or who gave directions to mail it to the address of Emanuel we do not know and none of the parties has made any serious attempt to supply these details.
2. Delivery and acceptance as alleged by plaintiff were not proved. The presumption of delivery arising from recording the instrument is not applicable here. See Lancaster v. May, as Administrator, 194 Or 647, 655, 243 P2d 268, where we said, "* * * if such recording be without the consent, actual or implied, of the grantee, it will not constitute a delivery."
We do not need to concern ourselves with the technical status of the delivery and acceptance of this deed. It is sufficient, for the purposes of this opinion, that we adopt plaintiff's own timing of the alleged transfer of title from him to his sons. That is established by his complaint where he says, "That on the 27th day of May, 1941 * * * plaintiff conveyed the said real property to these defendants." This date of attempted conveyance, corresponding as it does with the date of the recording, is the most significant moment of time in this matter because on that date the plaintiff had nothing to convey. The year's period for redemption had expired and, with the delivery of the sheriff's deed to the county as provided by ORS 312.200, the plaintiff no longer had any interest to convey. The father's *41 deed on May 27, 1941, was a nullity, whether or not there was a delivery and acceptance. The grantees acquired no estate thereby and, there being no consideration to support the covenant respecting the payment of taxes and no title to which to append the condition relating to the old gentleman's support, these salutary features for the benefit of the father failed insofar as they were obligations springing from the deed of their father recorded May 27.
Unfortunately, neither party made any serious effort to establish with certainty many dates of decisive character. Some of them would have been of great importance and assistance in determining more surely the rights of the respective parties.
Apparently, the plaintiff was in the habit of consulting The Honorable James Bain, then district attorney for Multnomah county and for several years past and now a judge of the circuit court for that county. Evidently, plaintiff solicited his advice from time to time on both civil and criminal problems, real and imaginary, arising out of his differences with his sons. We interpolate here to say that for many years prior to 1941, the defendant sons were their father's sole source of support. It was they who paid most of the taxes for the years prior to 1939 on the premises which are the subject of this litigation. Their voluntary contributions in this respect began many years before 1941. From a none too clear record, we gather that on two occasions in particular, Judge Bain, while district attorney, acted as a friendly and kindly moderator in the family arguments of the Bruscos. It would appear that one of these times was on or before May 9, 1941, when he advised them to go to some lawyer to have a deed or other instrument drawn which would insure a redemption of plaintiff's property by the two sons *42 from the tax foreclosure of 1940, and at the same time protect the sons for all monies advanced by them for back or future taxes.
There is absolutely nothing to indicate, nor is any claim made, that prior to May 27, or at any time subsequent thereto, the plaintiff and his sons had agreed upon any formula for the redemption of plaintiff's property from the foreclosure sale. The plaintiff does not remotely suggest that the pattern of the deed recorded on May 27 was the implementation of any previously-made agreement negotiated by and between the grantor and grantees.
The last conference referred to in the record, had between plaintiff and his sons before May 27, for the purpose of working out a formula to save Mr. Brusco's homeplace, was in the office of Mr. Herbring, a member of the Oregon Bar. Mr. Brusco and his sons apparently went there at the suggestion of Judge Bain and probably on or before May 9, 1941 (the date of the execution and acknowledgment of Brusco's deed). Whether it was the father or the sons who initially retained Mr. Herbring is unknown. The record discloses that when there Mr. Herbring tendered an instrument unsatisfactory in form to the sons and to their father. What was there said and done between the Bruscos is not fully disclosed, but apparently it was attended with some show of acrimony and stubbornness on the part of the Bruscos which prompted Mr. Herbring to tell one or all of them, "I will not be your attorney." If the brothers are to be believed, the deed recorded on the 27th was drawn and executed sometime after they left Herbring's office. It would have been an easy matter for the interested parties to have called Herbring as a witness if the representations concerning what happened in his office are not true.
*43 The next meeting with Judge Bain was sometime after May 27. We so say because the recorded deed or copies thereof were exhibited to Bain. The plaintiff and his sons were present. Plaintiff had gone there to importune Judge Bain's help in securing larger amounts of support money from the Brusco boys. Judge Bain called in the sons. Here again we are confronted with a vague account of a conference between the parties and their friend Bain, which could and should have been clarified by calling Judge Bain to the stand. From the confusing testimony of the Bruscos concerning this conference, we garner that the matter of the tax foreclosure was also discussed, and it then became apparent to all of them, evidently for the first time, that saving the father's homeplace required immediate action, as in fact it did. The redemption period having passed, Judge Bain, according to the testimony, advised them to negotiate immediately for a repurchase of the property under the provisions of ORS 312.120. Indeed, according to the uncontradicted testimony, Judge Bain in their behalf called at that very time the Multnomah County Land Office (a county agency handling the resale of properties acquired by the county on tax foreclosures). From Bain's office the Brusco brothers went directly to the land office in the courthouse. Whether their father went with them to that office, then or any other time, is not shown by the record. What negotiations were then had we do not know, nor do we know whether this was on or preliminary to August 4, 1941, the date of the repurchase contract executed by the defendant sons and their spouses.
3. Upon completion of the payments required by the repurchase contract, Multnomah county in May 1942 delivered its deed to the defendant brothers and their wives. It is under this deed that the Brusco brothers *44 claim title. We are satisfied that their title to the premises is derived through the county deed issued pursuant to the repurchase contract and not under the ineffectual deed of their father, as we have noted above.
Under the circumstances, there was no deed for this court to cancel, even if any of the various reasons which plaintiff advanced for cancellation were found tenable.
We shall not laden this opinion with a more extended statement, but we are satisfied that in terms of the law governing the right to cancellation and the facts as disclosed at the trial, a decree of cancellation would not have been warranted, even if it might be said that Mr. Brusco's deed to his sons was an effective conveyance of title as contended by plaintiff.
The decree is reversed and the suit dismissed. Parties will pay their own costs. | 0052b631434d3b4c0840cf45e5e69b183846afc3e9e0330ad172d06932b8af57 | 1954-11-03T00:00:00Z |
560f3105-8778-42e1-a717-2d532bd5a41e | Baum v. NEWBRY | 200 Or. 576, 267 P.2d 220 | null | oregon | Oregon Supreme Court | Affirmed as modified March 2, 1954.
*578 George T. Cochran, of La Grande, and A.S. Grant, of Baker, argued the cause for appellant. With them on the brief were John F. Steelhammer, of Salem, Anthony Yturri, of Ontario, and John F. Kilkenny, of Pendleton.
E.G. Foxley, Deputy Attorney General, of Salem, and Robert Y. Thornton, Attorney General, of Salem, argued the cause and filed a brief for respondents.
John C. Beatty, Jr., of Portland, argued the cause for intervenors and respondents Richard Deich and Olga Freeman. With him on the brief were Stanley Darling, of Eugene, Thomas B. Stoel and Nicholas Jaureguy, of Portland.
Douglas R. Spencer, of Eugene, argued the cause and filed a brief for intervenor and respondent Walter H. Dodd.
Before LATOURETTE, Chief Justice, and WARNER, ROSSMAN, LUSK, BRAND and PERRY, Justices.
AFFIRMED AS MODIFIED.
*579 LATOURETTE, C.J.
David C. Baum, a member of the state legislature from Union county, instituted suit for a declaratory judgment against Earl T. Newbry, Secretary of State, and Robert Y. Thornton, Attorney General, to determine the validity of the amendment to article IV, § 6, of the Oregon Constitution, adopted by the people via the initiative in 1952, which deals with the reapportionment of members of the legislative assembly. By reason of such amendment plaintiff's legislative district has been enlarged to include Wallowa county. The trial court permitted Richard Deich, Olga Freeman and Walter H. Dodd to intervene as defendants.
The trial court upheld the validity of the amendment. Plaintiff appeals.
The first point on the appeal is that the constitutional amendment was not legally adopted in that it violated article IV, § 20, of the constitution which prescribes that every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title, and § 22 of such article which provides that the act revised or section amended shall be published at full length.
1, 2. The authorities cited in the brief relate to legislative acts rather than to constitutional amendments. The provisions of the constitution above relied on have no reference to constitutional amendments. See Lechleidner v. Carson, 156 Or 636, 68 P2d 482; State v. Payne, 195 Or 624, 244 P2d 1025.
It is earnestly argued that unless we construe the above constitutional provisions as applicable to amendments to the constitution initiated by the people, voters would have no knowledge of what they are voting on. Section 81-2106, OCLA, relating to the submission of *580 measures to the voters, provides for short and general ballot titles, the general title to express in not more than 100 words the purpose of the measure. That the purpose of the measure was expressed in the ballot title in the present case is evidenced by the following allegation pleaded in the complaint:
From the foregoing it is clear that the voters were fully apprised of the nature of the amendment being voted upon.
It is next contended that the amendment violated article XVII, § 1, of the constitution, wherein it is stated:
3, 4. But the 1952 constitutional amendment did not submit "two or more amendments" to the voters. It submitted one amendment which deals only with the subject of reapportionment of the members of the legislative assembly and with matters which are germane thereto. While there may be some question as to whether the above-quoted portion of article XVII, § 1, applies to constitutional amendments submitted by initiative petition, we will assume for the purposes of this case that it does. Section 1 of article XVII does not prohibit the people from adopting an amendment which would affect more than one article or section by implication. Annotation, 94 ALR 1510. At most it prohibits the submission of two amendments on two different subjects in such manner as to make it impossible for the voters to express their will as to each. The fact, if it be one, that the reapportionment amendment may have amended more than one section of the constitution, would be immaterial.
It is next urged that the constitutional amendment is by its terms unconstitutional. Article IV, § 6, of our original constitution, provided for an apportionment by the legislature of the senators and representatives among the several counties according to the white population in each, next following the taking of the census by the federal or state government. It appears that the legislature complied with such constitutional pronouncement periodically up to 1933, from which time on no reapportionment by it has been made. It is for this reason that the people in 1952 amended article IV, § 6, by readopting the same in the main and by adding four provisions setting up machinery for the enforcement of such constitutional provision.
*582 The amendment, by its terms, reapportions among the several counties 30 senators and 60 representatives, being the same number as now prescribed by law, pursuant to article IV, § 2, of our constitution, to become effective at the primary and general elections of 1954, and continuing until the next census enumeration (1960) inclusive. It is provided that senators whose terms do not expire during 1954 shall continue to hold office for the duration of their respective terms, i.e., for an additional two years.
It is next provided that if the legislature does not act in accordance with the constitutional provision for reapportionment at the next session, i.e., 1961, following the next federal census enumeration, then, upon application to the supreme court by a qualified elector of the state, the secretary of state shall step in upon the direction of this court and make the reapportionment as provided by such article IV, § 6, of the constitution, subject to review by this court.
5. The constitutional amendment in the instant case is valid unless it contravenes the Federal Constitution. In State ex rel. Stadter v. Patterson, 197 Or 1, 17, 251 P2d 123, we said:
It is noteworthy that in the argument before us counsel for plaintiff candidly admitted this to be the law, as follows:
*583 The following colloquy took place between a member of the court and counsel for plaintiff:
Plaintiff asserts that the amendment being reviewed contravenes article IV, § 4, of the Federal Constitution which guarantees to every state a republican form of government in that it delegates to the supreme court and to the secretary of state legislative powers, contrary to article III, § 1, of our constitution relating to separation of powers. So far as the supreme court is concerned, this is not so. Under the amendment, original jurisdiction is vested in the supreme court upon the petition of a qualified elector of the state being filed with the court, where the legislative assembly has enacted a reapportionment measure, to review such measure. If the supreme court determines that the measure complies with the constitution, the petition shall be dismissed; otherwise, it is the duty of the court to declare the measure so enacted null and void, whereupon it is the duty of the court to direct the secretary of state to draft a reapportionment of the senators and representatives in compliance with the constitution. Upon a reapportionment draft being effected by the secretary of state, it then becomes the duty of the court to review the draft, and if such draft is in compliance with the constitution the court shall file the same with the governor, whereupon it shall become a law. On the other hand, if the court shall determine that the draft from the secretary of state does not comply with the constitution, the court shall return the same to the secretary of state accompanied by a *584 written opinion, particularly specifying wherein the draft does not comply with the constitution. Such opinion shall direct the secretary of state to file a corrected reapportionment with the governor in consonance with the opinion of the court, whereupon such redraft shall become the law upon the filing of the same as aforesaid.
It is further provided that if the legislature fails to make a reapportionment as provided in the constitution, it is the duty of the secretary of state to make a reapportionment of the senators and representatives in accordance with the constitution, and if any qualified elector is aggrieved at such reapportionment he may petition the supreme court, whereupon a similar procedure for review is provided for as is hereinbefore outlined.
It thus appears that the function of the court is one of review, and directive in the nature of mandamus, both within the age-old recognized prerogatives of the judiciary. Notwithstanding the above, the question of the guaranty of a republican form of government is one for congressional action rather than for the courts, as is hereinafter more fully treated.
6. As to the alleged delegation of legislative authority to the secretary of state, it is well settled that it is not within the judicial power to determine whether the republican form of government as guaranteed by the federal constitution is violated because that question is peculiarly a political matter and not one of judicial cognizance.
In Oregon v. Pacific States Tel. & Tel. Co., 223 US 118, 56 L ed 377, 32 S Ct 224, the Supreme Court of the United States said:
This doctrine is reaffirmed in Kiernan v. Portland, 223 US 151, 56 L ed 386, 32 S Ct 231, by the United States Supreme Court. See Highland Farms Dairy v. Agnew, 300 US 608, 81 L ed 835, 57 S Ct 549.
7, 8. We are bound by the interpretation placed on the Federal Constitution by the Supreme Court of the United States. This, therefore, being a political matter and not one for judicial inquiry, we are powerless to determine whether or not the constitutional amendment before us violates article IV, § 4, of the Federal Constitution.
9. The next constitutional question urged is that the amendment violates the Fourteenth Amendment to the Federal Constitution, relating to privileges and immunities, due process, and equal protection under the laws. No authorities are cited to sustain this proposition. The cases contrary to plaintiff's position are legion. See Snowden v. Hughes, 321 US 1, 88 L ed 497, 64 S Ct 397; State of Missouri v. Lewis, 101 US 22, 25 L ed 989; 12 Am Jur 92, Constitutional Law, § 448, et seq.
It is argued that when Oregon was admitted to the Union there was a covenant between it and the United *586 States that since article III, § 1, of our constitution separated the executive, judicial and legislative powers, such covenant could not be violated by the state by delegating to the secretary of state, an executive officer, the alleged legislative powers enumerated in the amendment, and that this court, in the proper exercise of its jurisdiction, is obligated to see that such covenant is enforced, irrespective of federal jurisdiction. This argument will not hold water for the reason, among others, that article III, § 1, of our constitution provides as follows:
10. If the alleged covenant has the legal significance attached to it by plaintiff, it is clear that such covenant was not breached by the state in view of that portion of article III, § 1, italicized.
There are a number of other questions raised by plaintiff, all of which we have carefully considered and find that they have no merit.
In voting the reapportionment amendment the sovereign people have spoken. Under the American theory of government, state constitutions derive their vitality from the people themselves, all power being inherent in them, and their voice will not be stilled so long as the amendment is legally adopted and does not contravene the Federal Constitution. Since we have found that the amendment was not within the exceptions above enumerated, the decree of the trial court *587 will be affirmed excepting as to costs, which were awarded to defendants against plaintiff in the trial court.
11. It appears that plaintiff brought this suit in good faith to determine the legality of a constitutional amendment which not only involves his legislative district but those of the balance of the state. An important public question was presented and we do not feel that he should be penalized by taxing costs against him. For this reason each party will bear his own costs, not only in the trial court but in this court as well.
Affirmed as modified. | 3e0d34c945f734bc21f25430bcb88dbb8c044adebb342dc2b7ade1fb52969a62 | 1954-03-02T00:00:00Z |
364a2077-62da-4606-988b-30f0065fc062 | Zahumensky v. Fandrich | 200 Or. 588, 267 P.2d 664 | null | oregon | Oregon Supreme Court | Affirmed March 3, 1954.
*589 Nathan Weinstein, of Portland, argued the cause and filed a brief for appellant.
L.A. Recken, of Portland, argued the cause for respondent. On the brief were Recken & Recken, of Portland.
Before LATOURETTE, Chief Justice, and WARNER, ROSSMAN, and PERRY, Justices.
AFFIRMED.
PERRY, J.
Plaintiff brought an action against the defendant to recover for personal injuries suffered while riding as a paying guest in the defendant's automobile. The jury returned a verdict for the defendant and the plaintiff has appealed.
Briefly the facts are: That the plaintiff and the defendant were both plasterers employed by one B.F. Smith on work being done in Newberg, Oregon. The parties resided in the city of Portland and there was an agreement between the parties that, as each had an automobile, on the day that the party owning the automobile transported the other person, that person paid $1 for his transportation. That on the 28th day of November, 1950, at approximately 5:15 p.m., the defendant's automobile proceeding in a northeasterly direction towards Portland on southwest Barbur boulevard *590 collided with a Ford automobile which was making a lefthand turn from the southwesterly bound traffic lane of the said highway, although there was no intersecting highway at this point from the southeast into Barbur boulevard. That the Ford automobile was being driven by one Douglas Robbins, who was accompanied by his wife. That in this accident the plaintiff received the injuries complained of.
The plaintiff assigns as error the sustaining by the trial court of an objection to the following question:
The plaintiff then made an offer to prove that if permitted to answer the question he would say that his ability to obtain work subsequent to the injuries was limited by reason of the accident.
1. The plaintiff had been permitted to testify fully as to his physical condition and his ability to carry on his work as a plasterer, and the offer of proof would go no further than the showing already made. The question was repetitious, and the court did not err in sustaining the objection.
The plaintiff's second assignment of error is based upon the refusal of the court to permit the plaintiff to make inquiry of the defendant as to whether or not he had paid a sum of money as compensation to a Mrs. Robbins, who, as a passenger in the Ford automobile, had suffered injuries in the collision. The plaintiff relies upon the case of Weiss v. Kohlhagen, 58 Or 144, 153, 113 P 46, wherein this court said:
Since the opinion of Weiss v. Kohlhagen, supra, was written, the courts generally have, as a matter of public policy to encourage and not discourage compromises and settlements which the law favors, held inadmissible evidence to the effect that a defendant in a negligence action has paid third parties on claims arising from the same transactions for the purpose of showing an admission of liability.
The case of Howland v. Bartlett, supra, was overruled by the Georgia case of Scott v. Torrance, 69 Ga. App. 309, 25 SE2d 120; the case of Campbell v. Missouri Pacific R. Co., supra, was overruled by the case of Pfiffner v. Kroger Grocer & Baking Co., (Mo. App.) 140 SW2d 79; and, while the New Hampshire cases seem to be in a state of flux, they seem to hold that if the matter is called to the attention of the court, the trial court must first determine whether the settlement was made with a third person as a compromise of a claim, the validity of which was denied by the defendant, or as an admission of liability, and if the trial court determines the payment was an admission of liability and not the compromise of a denied liability, it becomes admissible. Gault v. Concord R. Co., 63 NH 356.
2, 3. We are of the opinion that the better rule is that where a settlement is made by way of compromise with a third person not a party to the suit, arising out of the same transaction or incident, evidence of the settlement with that third person is not admissible in evidence as an admission of liability. See Annotations, 20 ALR2d 304.
*592 4. As a third assignment of error, the plaintiff complains of the trial court's deletion from his requested instruction No. 4 the second paragraph thereof. The first paragraph of the instruction sets forth in the words of the statute the basic rule (§ 115-320 OCLA, as amended, now ORS 483.102), and the second paragraph which was deleted read as follows:
The vice of this portion of the requested instruction is in the use of the words "regardless of what a reasonably careful person might or might not do in the absence of such statutory provisions". This statement withdraws from the consideration of the jury what a reasonably prudent man would do with reference to the speed of his automobile under the circumstances then and there existing. The basic rule applies to the driven speed of an automobile upon a highway, and the very essence of the statute is the speed at which a reasonably prudent person would drive under the circumstances then and there existing, taking into consideration the traffic thereon, the surface and width of the highway as it existed, the hazards at intersections, and any other conditions then existing that would apprise a reasonably prudent person as to the speed at which he should drive to meet these conditions and, likewise, to control his automobile for the purposes of safety as outlined in the act. Zeek v. Bicknell, 159 Or 167, 175, 78 P2d 620.
The court properly refused to give that portion of the requested instruction.
*593 The plaintiff also complains of the trial court's failure to give an instruction to the effect that the defendant was weaving in and out of traffic at the time and place of the accident. We have carefully studied the transcript and there is no evidence that would justify the court in giving the instruction requested. This issue of negligence was properly withdrawn from the consideration of the jury.
The plaintiff assigns other matters as alleged errors of the trial court. We have carefully considered each of them. We do not consider that the trial court erred in refusing to give the instruction assigned as Error No. 5, or the instruction assigned as Error No. 6, or in giving and withdrawing from the consideration of the jury instruction No. 5 assigned as Error No. 7.
Finding no error in the record, the judgment of the trial court is affirmed. | a8531f8d47a468dbe424afa49b6d6e40deb95b66a0a5c241b31307d10ab2ff9b | 1954-03-03T00:00:00Z |
1b7042d9-6d77-42f4-868a-d0b51a8b5d41 | Kramer v. Taylor | 200 Or. 640, 266 P.2d 709 | null | oregon | Oregon Supreme Court | Affirmed February 10, 1954.
Petition for rehearing denied March 24, 1954.
*642 Harold Banta argued the cause for appellant. On the briefs were Hallock, Banta, Silven & Horton, of Baker.
*643 Lyle R. Wolff, of Baker, argued the cause and filed a brief for respondents J.T. Taylor and Josephine M. Buchen.
Before LATOURETTE, Chief Justice, and WARNER, ROSSMAN, LUSK, TOOZE and PERRY, Justices.
AFFIRMED.
WARNER, J.
This suit was brought by H.F. Kramer against J.T. Taylor and Josephine M. Buchen for the purpose of quieting title in him to two unpatented lode mining claims situated in Baker county, Oregon. The defendant Culley Trickel, intervened, alleging that he is the owner of all the right, title and interest claimed by the defendant Taylor in and to the contested property and praying for judgment in that tenor. From a decree predicated upon findings of fact and conclusions of law in favor of the defendants Taylor and Buchen and against the claims of the plaintiff Kramer and the intervenor Trickel, the plaintiff alone appeals.
Sometime in 1931 the predecessors in interest to Taylor and Buchen filed adjacent claims and named them, respectively, the Bengal and the Provider. They were never patented. The southerly boundary of the Bengal is co-extensive with the northerly boundary of the Provider. Thereafter, in September 1951, Kramer relocated the two claims, covering substantially the same area. The northerly claim corresponding to the Bengal he designated as Tungsten Mine No. 2, and his southerly claim as Tungsten Mine No. 1. Inasmuch as the boundaries of the first two claims filed upon are more or less coterminous with those filed upon by Kramer and since no issue is raised relative to any deviations in their respective boundary lines, we will hereinafter refer to them as the north *644 claim (Bengal or Tungsten Mine No. 2) and the south claim (Provider or Tungsten Mine No. 1). The claims together were known and operated as the old Cliff Mine and extensively developed in earlier days. Taylor and Buchen, by their respective answers, each assert an undivided one-half interest in the claims as a successor's interest to the original locators.
The two claims, each 600 feet wide, lie on a mountainside and for a distance of 3,000 feet slope from the north to the south. The discovered vein runs northerly and southerly through their approximate center. They disclose the presence of much previous mining activity, particularly in an area marked by a shaft sunk into the vein on the Provider claim at a point about 290 feet south of its northerly boundary. In this shaft, now suffering from long disuse, are the remains of four drifts at different levels which were employed by defendants' early predecessors for the exploration and extraction of minerals from the vein. Two follow the vein in a southerly direction and two follow its northerly course. The apparent overall objective of the defendant owners was to rehabilitate the operation for the mining of tungsten ore which is present, with traces of gold. In keeping with this purpose, the defendants began, prior to 1950, an open cut in a ravine on the south claim and approximately in the middle of that claim. Their project contemplated a tunnel pointing in the direction of the shaft and, among other things, was planned to intersect the shaft at its 90-foot level. The tunnel excavation was begun in the assessment year for 1950-51. It is this work in the tunnel area which is the real subject of the controversy between the parties.
It is the contention of the plaintiff Kramer that the defendants had forfeited all rights in the claims, *645 for the following reasons: (1) the defendants in the year 1950-51 failed to do the amount of annual work required under the federal law (30 USCA § 28); (2) if the amount of such work was sufficient, the plaintiff asserts it was for the purpose of further prospecting and exploring the claims rather than for their development; and (3) in any event, no work was done on the north claim and it received no benefit from the tunnel construction started on the contiguous south claim. The appellant also urges, as a fourth proposition, that the filing made in 1931, under which defendants claim title, is void. The first three matters are primarily challenges to the sufficiency of the evidence.
The defendants reply that the value of the assessment work done by them in 1950-51, reflected primarily by the tunnel construction under the direction of Taylor, exceeded $200 in value and was for the purpose of developing the known vein running north and south through the approximate center of both claims and, although done on the south claim, was nevertheless intended for the benefit of the two claims. The circuit court found for the defendants in all these matters, as well as for the validity of the challenged 1931 filings.
So far as pertinent, 30 USCA § 28 reads:
The foregoing section makes the location, manner of recording and amount of work necessary to hold possession of a mining claim subject to such provisions of state and territorial law as are not inconsistent with the laws of the United States. In the exercise of this power the Oregon legislature has included in the mining code §§ 108-301 108-326, OCLA (ORS 517.010 517.330), which are in the nature of rules and regulations relating to mining locations and annual assessment work comprehended by 30 USCA § 28.
Section 108-314, OCLA (ORS 517.210) provides:
1. Although an appeal of a suit in equity is tried here de novo, yet when the proof is evenly balanced we are not justified in rejecting a finding of the lower court where existed the opportunity, denied to us, of evaluating the testimony of the witnesses in the light of their demeanor and manner of testifying. Bogle v. Paulson, 185 Or 211, 228, 201 P2d 733; Public Market Co. v. Portland, 171 Or 522, 561, 130 P2d 624, 138 P2d 916; Page v. Kay Woolen Mill Co., 168 Or 434, 441, 123 P2d 982. Because of the unique factual situation present in a case of this character, the court's findings attain additional weight when, as we learn here, the court visited and viewed the premises in controversy during the course of the trial.
2. The burden of proof to establish a forfeiture of mining claims by reason of failure to do the work required is upon the party asserting such forfeiture. Whalen Consol. Copper Min. Co. v. Whalen, 127 F 611; Copper State Mining Co. v. Kidder, 20 Ariz 224, 179 P 641, 642.
3, 4. We also take heed of the rule that a forfeiture cannot be established except upon clear and convincing proof of the failure of the original locator to have work performed or improvements made in the amount required by law. Schlegel v. Hough, 182 Or 441, 444, 186 *648 P2d 516, 188 P2d 158; Bishop v. Baisley, 28 Or 119, 127, 41 P 936; McCulloch v. Murphy, (CC) 125 F 147, 150. Where a forfeiture of a mining claim is involved, the appellate court should not disturb a finding of the trial court which prevents such forfeiture, unless it is clearly made to appear that such finding is not supported by the evidence (Nevada Exploration & Mining Co. v. Spriggs, 41 Utah 171, 124 P 770, 773); and if the testimony relative to value is conflicting, it is proper to consider whether there has been a bona fide attempt to comply with the law. Quimby v. Boyd, 8 Colo 194, 6 P 462, 471.
By appellant's first assignment of error it is urged that the trial court erred in finding that the evidence established that $200 worth of work was done on the claim by Taylor and Buchen during the fiscal year of 1950-51. It was the circuit court's determination that during the period last mentioned, the defendant Taylor had performed 17 days of work at a reasonable value of $12 per day, making a total of $204, and that in so doing he drove a tunnel for a length of 16 feet, having a reasonable value of $14 per foot for a total value of $224. The judge's findings on this phase conclude with the statement that "the Court definitely finds that the evidence establishes that $200.00 was the reasonable value of the work done during the last year of 1950-1951."
It is appellant's contention that, giving the record a construction most favorable to respondents, they can at best claim only 16 days of labor at $12 per day and 11 feet of tunnel construction at a value of $14 per foot and that, figuring on a per diem basis, the work done would be worth not to exceed $194 and, computing it on a footage basis, the value falls as low as $154.
*649 Summarizing these differences in terms of days, the parties are but one day apart and, in terms of tunnel distance, a difference of 5 feet. We note that, in making this finding, the court's determination rests upon a two-way result, first, in evaluating the amount of the labor performed and, second, in giving value to the finished result.
5. The law is settled in this state that the test to be applied, in determining whether or not the claimant has satisfied the law with reference to annual assessment work done or improvements made, is measured not in terms of days but in terms of dollars. It is the worth at the conclusion of the work, no matter how many days were employed in achieving that result. Schlegel v. Hough, supra, at page 446. Also see Penn v. Oldhauber, 24 Mont 287, 61 P 649, 650, cited with approval in the Schlegel case. Although this rule was recognized by the lower court in its opinion, it was not in error in receiving and giving consideration to testimony relating to the time element involved in making its final determination of the value of the work done. On the other hand, the importance of Taylor's work records and alleged discrepancies therein is materially minimized by the rule; and, therefore, they do not merit the extent of attention given to them in appellant's brief.
6. Our own examination of the record inclines us to accept the circuit court's finding. We are also impressed by the fact that the defendants were making a bona fide effort to comply with the law in their work and find no merit in appellant's first assignment of error.
We now give attention to appellant's second proposition, i.e., that the court erred in ruling that the tunnel was for the purpose of developing an existing *650 known vein rather than for the purpose of prospecting and exploring for one not known to exist.
The plaintiff claims that development and demonstration of a known ledge constitutes annual labor for which credit will be given but that labor expended in prospecting or making explorations to locate a ledge not known to exist is not in this category. He relies on Schlegel v. Hough, supra, at page 447, and Bishop v. Baisley, supra, at page 135. Both cases, as a matter of law, give support to this contention.
Here we are again confronted with an examination of the record to ascertain whether or not the tunnel construction, begun by defendants in 1950 and claimed as the basis for the assessment work done for the 1950-51 period, was in fact, as found by the court, "for the purpose of developing an existing known vein of tungsten, which tunnel ran in the direction where everyone believed the vein to run", and the court's further finding that "Taylor's work was based on a reasonable theory that he would eventually strike the existing known vein".
7. Our own examination of the record persuades us that no one can successfully controvert the conclusion that the work done on the tunnel was based upon a reasonable theory and honest expectation that, if pursued in the direction planned, that is, to intersect the previously constructed shaft to the north, it would strike the tungsten vein so evident in the shaft itself.
8, 9. On the question of whether the tunnel operation was solely one of exploration rather than development, we think that the testimony preponderates in favor of the theory of development. It is true that construction of the tunnel had elements savoring of discovery and exploration, that is, the location of the southerly drift of the vein previously discoverd and exploited *651 in its more northerly reaches in the area of the old mining shaft; but the fact that an attempt is made to discover ore in the course of driving a tunnel or drift does not preclude such work from being assessment work. It is the general plan and intent behind it which controls. New Mercur Mining Co. v. South Mercur Mining Co., 102 Utah 131, 128 P2d 269, 274; 58 CJS 130, Mines and Minerals § 72.
There is, in addition to the testimony of the defendant Taylor and others, that given by Carl Milton and Walter Jefferson, two seasoned men with experience in that mining area varying from 20 to 45 years, which amply warrants the court's finding that the work done on the tunnel was a part of an overall development plan for the contested claims. Mr. Milton testified:
The witness Jefferson, in response to a like question, answered:
We have held that the word "improvement" as employed in 30 USCA § 28 means, if reasonably permanent in character, such an artificial change of the physical conditions of the earth in, upon or so reasonably near a mining claim as to evidence a design to discover mineral therein or to facilitate its extraction. Fredricks v. Klauser, 52 Or 110, 116, 96 P 679.
10. In the exercise of judgment as to when work should be done, a wide latitude is allowed the locators of mining property when consisting of several claims, as here, as to the place or places where the work shall be accomplished to develop such a group of claims; and this is true without giving consideration to whether or not the work is wisely or judiciously done or the system adopted may or may not be the best that could have *653 been devised under the circumstances. Wailes v. Davies (CC) 158 F 667, 670; Love v. Mt. Oddie United Mines Co., 43 Nev 61, 181 P 133, 184 P 921; 58 CJS 130, Mines and Minerals § 72. A court will not be permitted to substitute its own judgment as to the wisdom and expediency of the method employed for developing a mine in place of the judgment of the owner. Mann v. Budlong, 129 Cal 577, 62 P 120. Also see Nevada Exploration & Mining Co. v. Spriggs, supra; 2 Lindley, Mines 3d ed, 1561, § 631.
We find that appellant's second assignment of error is without merit.
Next in order for review is the assertion that the court erred in finding that the work done by the defendants on the south or Provider claim inured to the benefit and development of the north or Bengal location.
11. No claim is made by the defendants that any actual work was performed on the Bengal claim during the assessment year of 1950-51. It is their position that their labors in the tunnel during that period redounded to the benefit of both claims and that under the authority of Jackson v. Roby, 109 US 440, 444, 27 L ed 990, 3 S Ct 301 (Colo 1883) the work there done by them should be so credited. In the Jackson case Mr. Justice Field, following Smelting Co. v. Kemp, 104 US 636, 655, 26 L ed 875, held: "* * * the law [RS 2324, now 30 USCA § 28] permits a general system to be adopted for adjoining claims held in common, and in such case the expenditures required may be made, or the labor be performed, upon any one of them." Also see Fredricks v. Klauser, supra, and the extended annotation of cases in point appearing in 30 USCA § 28, note 318. Whether the work done upon one claim for the benefit of a group does so benefit *654 all claims is a question of fact. 2 Lindley, Mines 3d ed, 1555, § 630.
12. He who make a relocation based upon an alleged forfeiture of the preceding right to possession of the premises, by reason of the predecessor's neglect to make the required improvement, has the burden of establishing the fact of such a loss. However, a prima facie case in the relocator's favor is made when it appears that the labor was not performed within the limits of the claim during the year relied upon, whereupon the burden shifts to the preceding location claimant, making it incumbent upon him to prove that, although the annual assessment or any part thereof was done outside the claim described, the work was performed for and inured to the benefit of such mine. Merchants' Nat. Bank v. McKeown, 60 Or 325, 329, 119 P 334; Fredricks v. Klauser, supra, at page 115; 58 CJS 144, Mines and Minerals § 82; Morrison, Mining Rights 16th ed, 118.
These pertinent facts are made evident to us from the trial record: What are now known as the Provider and Bengal claims were, as long ago as 1896, known by defendants' predecessors as the Cliff and Anna Lulu claims and together operated as the Cliff Mine, a name which appears to cling to the present operation. Then, and apparently as late as 1931, the prime interest of the locators was the extraction of gold ore. During the course of the early development of these quartz holdings, defendants' predecessors, at a time not disclosed by the record, sank the shaft previously referred to, which is approximately 225 feet deep at a point about 290 feet south of the north boundary of the south claim, a boundary line common to both claims. This shaft is astride the apparent course of the known vein about 650 feet from the most northerly *655 prospect hole in the Bengal claim and about 460 feet north of the tunnel portal located in the south or Provider claim; in short, it is almost midway in the course of the ore vein as it is presently known to lie and as determined by the prospect holes, the shaft walls and other indices of merit. The shaft was obviously designed to service both claims by the extraction of ore from the vein on the north side of its location and as it was found on the south side.
From the shaft run four old drifts, each at different levels, made by earlier operators, two in a southerly direction and the other two, including the longest, in a northerly direction. The longest drift, as shown by the Nelson map introduced by plaintiff, terminates under the ground of the north claim. Before the present activies of the defendants, the ore obtained from the exploitation of these drifts was mechanically hoisted to the surface through the shaft and dumped. Although this northerly drift is said to be stoped out to a distance of 150 feet, we find no one suggesting that further mining in that general direction would be in vain. At the time of the trial access to the other northerly drift running from the shaft at its lowest level was impeded by debris which had blocked that part of the shaft during prior years. The possibilities of its further exploitation are unknown, although there is testimony to the effect that richer findings could be at the base of this shaft. Then, as now, the shaft and its situs are the central point of all operations pertaining to the two claims and where past, as well as present, developments either radiate from or point toward. Thus the tunnel in question is being driven from the south to the north with a plan and expectation of intersecting the shaft at its 90-foot level with a design to better its future use by, among *656 other things, improving its ventilation and drainage and offering a more efficient and cheaper outlet for ore culled from the ground in that area. As stated by one witness, a miner, the tunnel is an "adit" to the shaft, which in mining vernacular is "a nearly horizontal passage from the surface, to provide access, haulage, drainage, ventilation etc." Webster's New International Dictionary 2d ed.
Although the defendants can claim no credit on their 1950-51 assessment work for improvements made subsequent to July 1, 1951, the record discloses later work of a substantial nature made in and about the shaft which emphasizes that it is the heart of the mining activity for both claims and gives substance to defendants' bona fide plan for an overall development of the claims as one operating unit.
In Smelting Co. v. Kemp, supra, Mr. Justice Field said: "* * * It would be absurd to require a shaft to be sunk on each location in a consolidated claim, when one shaft would suffice for all the locations * * *."
The strategic location of this shaft, together with its known historic use, impels us to conclude that it is the central point of importance and usefulness in all present and future development of the two claims, insofar as the owners can at present reasonably conceive and plan that development for the benefit of both. It, therefore, follows that any work and labor designed to improve the shaft inure and redound to the improvement of each contiguous area which it serves.
That the defendants at all times intended that the work done on the tunnel was for the benefit of both claims is made patent by the proofs of assessment labor filed for the years ending in 1950 and 1951. This *657 recorded proof for each annual assessment period is made jointly for the two claims, and the recitals therein leave no doubt that the owners conceived and designed the work as an improvement benefiting both properties. It was work which coordinated with their concurrent efforts to secure funds by federal financing for the purpose of rehabilitating and expanding the shaft and with a view to getting to the bottom thereof where the best tungsten was supposed to be.
It is permissive that one general system was conceived and appeared well adapted in the light of the physical surroundings and the geological information then available. New Mercur Mining Co. v. South Mercur Mining Co., supra. We also subscribe to the statement found in Nevada Exploration & Mining Co. v. Spriggs, supra, that "it is not necessary for a claimant to prepare plans and specifications with regard to how he intends to develop his claim", nor does the law require that the annual expenditure shall be applied in the way of the best possible development of the claim. Sherlock v. Leighton, 9 Wyo 297, 63 P 580, 583, 934.
The shaft in question, as we have noticed, was initially conceived as an integral and important part of the development of both claims and so used. It still continues to be the objective of further development and use by restoration in whole or in part, particularly by improvement and use through the medium of the tunnel under construction. We have no right to assume that when the contemplated improvements already begun are completed, it will not function as of yore in its historic capacity as a unit in the extraction of ore from the northern claim with which it is presently connected by two definable drifts in that direction.
13. The appellant Kramer is a man with considerable *658 mining experience. His aggressive eagerness to acquire and locate on the north claim, as well as the contiguous one to the south, coupled with his assertion that he found evidence of gold and tungsten on the surface of the Bengal or north claim, gives substance to his faith in its potentialities as an area for further exploitation and source of mining profit. Under the circumstances here present and taking into consideration the whole of the environment (Copper Mt. M. & S. Co. v. Butte & Corbin Consol. Co. & S.M. Co., 39 Mont 487, 104 P 540, 542) it is impossible for us to conclude that those things which improve and develop the existing shaft are not beneficial to the north claim or were not so intended. The circuit court, we think with justification, found that the work done by Taylor on the tunnel was to facilitate the taking of ore from both the claims.
Appellant's last assignment of error takes issue with the circuit court for its failure to void the original Bengal and Provider locations made in 1931 and gives as a reason that they were predicated upon a single boundary discovery and the location work was not done and recorded within the time required by law.
This phase of appellant's argument is predicated upon a record of events occurring more than 20 years ago, as evidenced by the location notices filed by defendants' predecessors in interest, i.e., by Alma Williams and M.F. Newton, on September 23, 1931. One notice describes the location of the discovery or prospect shaft of the Bengal claim, together with the boundaries thereof, and the other notice supplies similar information concerning the Provider claim. Appellant points to § 108-301, OCLA (ORS 517.010), providing, among other things, "the number of linear feet claimed along the vein or lode each way from *659 the point of discovery", and claims that the notices are fatally deficient in this respect.
He also claims that the notices are defective because they were posted on the claims on June 15, 1931, but not filed until September 23, 1931, more than 60 days after the posting. In support of this contention he relies upon § 108-302, OCLA (ORS 517.030) which requires that each locator shall, within 60 days from and after the posting of the required location notices (§ 108-301) file with the county clerk a copy of notices posted with an affidavit showing that the work required to be done by § 108-303 (ORS 517.020) had been done and performed. Appellant claims that because of these alleged defects the claims filed in 1931 are null and void, relying upon § 108-310, OCLA (ORS 517.050).
14. This fourth claim of error must be resolved against the appellant on the authority of Sharkey v. Candiani, 48 Or 112, 121, 85 P 219, 7 LRA NS 791, which holds that the discovery of a lode on a given claim after the filing of imperfect notices of location validates the prior insufficient location if no adverse rghts have accrued between the filing of the imperfect notice and the discovery made. Also see Steele v. Preble, 158 Or 641, 667, 77 P2d 418, where Mr. Justice ROSSMAN quotes with approval the following from Thomas v. South Butte Mining Co., 211 F 105:
The decree of the circuit court is affirmed. | f534154900ebd3634729ab8da3d50a898f42ccd95513b37a3d6538f1bbff2ca3 | 1954-02-10T00:00:00Z |
d9156f45-05f3-42ed-b662-d0ff201083c0 | Glaser v. North's | 201 Or. 118, 266 P.2d 680 | null | oregon | Oregon Supreme Court | Affirmed as modified February 10, 1954.
Petition for rehearing denied April 14, 1954.
*119 W.C. Winslow, of Salem, and Edward E. Sox, of Albany, argued the cause for appellant. On the brief was Edward E. Sox.
Courtney R. Johns argued the cause for respondents. On the brief were Goode & Johns, of Albany.
Before LATOURETTE, Chief Justice, and LUSK, BRAND and TOOZE, Justices.
AFFIRMED AS MODIFIED.
LUSK, J.
This is an appeal by the plaintiff from a decree in a suit to foreclose a chattel mortgage. The facts are *120 as follows: The defendants, Irwin M. Kampfer and wife (who are the respondents here), were on August 12, 1950, lessees of a storeroom on the ground floor of the Pfeiffer Building in Albany, Oregon, for a term ending March 1, 1966. On August 12, 1950, they entered into a sublease of the premises with John F. North and Layton K. Nosler, who later, with the consent of the lessors, assigned their lease to North's, a corporation. The term of the sublease was from August 15, 1950 to February 25, 1956. The premises were known as The Hub Restaurant and had previously been, and under the terms of the sublease were to continue to be, used for restaurant purposes. On the day of the execution of the sublease and as part of the transaction the Kampfers entered into a contract of conditional sale with their tenants of "all of the personal property described in" an inventory attached to such contract. The consideration was $25,000. The property covered by the contract may be divided into two classes, namely, articles suitable for use in a restaurant and not in any way attached to the realty, and restaurant equipment "designed for the premises", as the defendant Irwin M. Kampfer testified, and installed by him at a cost of $68,000. This equipment was "set in and part of the building was built around it." The conditional sale contract is referred to in the sublease in the following language:
*121 Under date of October 19, 1950, the purchase price of the property covered by the conditional sales contract having been fully paid, the Kampfers executed a bill of sale of such property to North and Nosler, and they in turn executed a similar bill of sale to North's, the assignee under the sublease. At about the same time North's borrowed $12,000 from the plaintiff, giving him its note for that amount payable in monthly installments of not less than $500 with interest at the rate of eight per cent per annum, and, to secure payment thereof, executing the chattel mortgage to foreclose which this suit was brought and which covered all the property described in the bill of sale. The note and mortgage are dated October 17, 1950, and the money was apparently borrowed for the purpose of paying off the balance owing on the conditional sales contract.
Sometime in 1951 the exact time is not disclosed North's defaulted in the payment of rent to the Kampfers under the sublease and abandoned the premises, together with all the personal property and equipment therein. The evidence in this regard is that the rent was paid up to October 1, 1951, and this included amounts recovered by the Kampfers through actions brought by the Kampfers against North's. North's also defaulted in payment of installments due under its note to the plaintiff. On December 21, 1951, the plaintiff commenced this suit to foreclose his mortgage. On the day following the Kampfers took possession of the premises and padlocked the door. North's defaulted, and on this appeal we are concerned with a controversy between the Kampfers, the landlords, on the one hand, and Glaser, the mortgagee, on the other, respecting the ownership of a portion of the property included in the chattel mortgage. By its *122 decree the court divided the mortgaged property into the two classes above indicated. As to the articles not attached to the realty the court entered a decree of foreclosure of the plaintiff's mortgage. The remaining equipment, termed fixtures in the decree, was adjudged to be the property of the defendants Kampfer, free from any claim of the plaintiff. The uncontradicted evidence is that all the equipment included in this category was affixed to the realty and that if it should be removed the cost of repairs and restoration necessitated by such removal would be in excess of $4,000.
1. On this appeal the principal contention of the plaintiff is that the court erred in excluding from the decree of foreclosure the property described as fixtures. It is urged in support of this claim that the parties to the sublease had treated the equipment attached to the realty as personal property, and that it was therefore subject to the lien of the chattel mortgage executed by North's to Glaser. There can be no doubt that for the purposes of this case the fixtures must be regarded as personal property as long as North's continued in possession of the leased premises under the sublease, and therefore that the lien of plaintiff's chattel mortgage attached to that property as well as to the remaining articles described in the instrument. These improvements were trade fixtures sold and transferred to the sublessees by the Kampfers through instruments separate from the lease, and which clearly indicated the intention of the parties to treat the fixtures as personalty. The sublease itself moreover recognized their character as personalty by granting the right to the sublessees to remove them at the expiration of the lease or its sooner termination.
2. "The giving of a bill of sale to an article attached *123 to the soil at the same time a deed is executed covering the realty is an indication that the parties intended the articles should be deemed personal property." Mattechek v. Pugh, 153 Or 1, 6, 55 P2d 730. The opinion in the case cites numerous decisions of this court in support of the holding that parties may agree that the annexation of a chattel to the land shall not deprive it of its character as personalty, and that the interested parties may agree that an article already annexed to the soil shall be deemed personalty.
3, 4. These rules, however, well settled though they may be and entirely applicable here, are by no means dispositive of the case for the questions that must be determined are whether North's lost its rights to the fixtures by abandoning them, and, if so, whether the mortgagee's right fell with North's. Upon these questions the law of this state is equally well settled. In Blake-McFall Co. v. Wilson, 98 Or 626, 193 P 902, 14 ALR 1275, this court, speaking through Mr. Justice HARRIS, said:
See, also, General Petroleum Corp. v. Shefter, 141 Or 349, 352, 16 P2d 645; 22 Am Jur 756, Fixtures § 43; Annotations 6 ALR2d 322, 39 ALR 1099. It is also *124 held that where the tenancy has been wrongfully terminated by the landlord the tenant has a reasonable time in which to re-enter and remove fixtures. Eldridge v. Hoefer, 45 Or 239, 77 P 874. That question, however, is not involved in this case. Here the right of removal was fixed by the terms of the sublease as "at the expiration, or any sooner termination of this sub-lease", and the evidence is clear and uncontradicted that North's defaulted in the payment of rent, abandoned the premises and the fixtures and made no effort to recover them, and that the Kampfers thereupon took possession and terminated the lease. As a result the lessee's title to the fixtures failed and it lost its right of removal. The mortgagee has no better title than the lessee, and, if the tenant would have no right of removal owing to the expiration of the tenancy or his relinquishment of possession, one to whom he has mortgaged the articles would have no such right. Couch v. Scandinavian-American Bank, 103 Or 48, 58, 59, 197 P 284, 202 P 558, 203 P 890, and numerous authorities there cited. See, also, Smith v. Reigleman, 143 Or 463, 467, 23 P2d 129; Donahue v. Hardman Estate, 91 Wash 125, 157 P 478; Shelton v. Jones, 66 Okla 83, 167 P 458; 14 CJS 642, Chattel Mortgages § 33; 22 Am Jur 757; Fixtures § 43.
For the purposes of illustration we will refer to Bush v. Havird, 12 Ida 352, 86 P 529, one of the decisions cited with approval in Couch v. Scandinavian-American Bank, supra. The lessees of a saloon building installed in the premises and attached to the realty bar fixtures, an ice chest, etc., and executed a chattel mortgage on this property which was assigned to the defendants. The lessees defaulted in the payment of rent, and the owners of the premises secured possession through legal proceedings. The tenant did not *125 seek to remove the fixtures, but the owners of the mortgage, after the landlord took possession of the building, commenced a proceeding before the sheriff to foreclosure the mortgage, and, when the owner of the premises refused to deliver up possession, caused the sheriff to break open and forcibly enter the building and remove the mortgaged property. The owner thereupon sued the assignees of the mortgage to recover judgment for the value of the property so removed. The court, in an opinion by Ailshie, J., reversed a judgment for the defendant. The mortgaged property was held to be "trade fixtures" and therefore removable by the tenant, both under a statute of Idaho and at common law. But this right, it was said, must be exercised by the tenant prior to surrendering possession or to eviction for a breach of the lease. Otherwise the right is lost. The court continued:
The Couch case involved the right to remove a building on leased land which had been erected by the lessee under an agreement that it might be removed within 90 days after expiration of the term. The tenant executed to the defendant bank a chattel mortgage on the building. The tenant defaulted, and the landlord canceled the lease, and thereafter sued to cancel the apparent lien of the bank's chattel mortgage. Applying the rules above stated, this court held that the right of the tenant in the building had been lost by reason of its failure to remove it within the time stipulated in the lease, and that the bank's right in the property, which was no higher or greater than that of the tenant, would likewise have been lost but for circumstances which would have made a forfeiture of its lien inequitable. The court said: "The Scandinavian-American Bank should have protected itself against the forfeiture of its security. It had a right to pay the rent and taxes so as to prevent the forfeiture of the lease." But it was said that the bank had been lulled into a sense of security by representations made to it by the agent of the owners of the land. It appeared, moreover, that the owner had recovered a judgment against a surety company, $6,500 of which was for damages resulting from the lessee's failure to remove the building. For these reasons, it was held, the plaintiff "was not in a position to seek equity." A decree was entered permitting foreclosure of the bank's mortgage upon the payment by it to the owner of the land of taxes, rents, assessments, etc., to which she was entitled under the lease.
*127 As there is in this case no evidence of inequitable conduct on the part of the defendants Kampfer which would justify the court in refusing to apply the well-established rules of law applicable to cases of this kind and approved in Couch v. Scandinavian-American Bank, supra, it follows that the circuit court was right in holding that the defendants were the owners of the fixtures free from any claim of the mortgagee.
5, 6. The evidence supports the judgment of $500 granted to the defendants Kampfer for storage to the date of the decree of the articles, not fixtures, found to be subject to foreclosure. These articles could have been removed from the building by the plaintiff but he chose to leave them there. In these circumstances the law would imply an agreement on his part to pay for such services. Roberts v. Gerlinger, 124 Or 461, 467, 263 P 916; 12 Am Jur 501, Contracts § 5. The court was without authority, however, to provide for a judgment for storage which might or might not be furnished in the future, and the decree must therefore be modified by the elimination of that provision. Otherwise it is affirmed. | f65e6f59ce33894eb4b5271ee5b0e8b8ad1ec1eb578c52d8a7aa4410f7de24fc | 1954-02-10T00:00:00Z |
7cad81a5-643d-4622-b5b8-992d340ea5fe | Medak v. DePrez | 236 Or. 31, 386 P.2d 805 | null | oregon | Oregon Supreme Court | Affirmed November 13, 1963.
*33 G. Dwyer Wilson, Portland, argued the cause for appellants. With him on the briefs were Wilson & Crew, Portland.
John P. Ronchetto, Portland, argued the cause for respondents. With him on the brief were Fewless & Douglass, Portland.
Before McALLISTER, Chief Justice, and ROSSMAN, SLOAN, GOODWIN and LUSK, Justices.
AFFIRMED.
GOODWIN, J.
The plaintiffs, payees and holders of a demand promissory note, recovered judgment against the makers of the note. The makers appeal.
The note was given as earnest money, subject to forfeiture, in connection with an offer to purchase certain real estate. The offer was accepted by the sellers, but the transaction was never consummated. The payees of the note were the real estate brokers who had been employed to sell certain property. The sellers of the property were not made parties below. There is no substantial dispute about the making or the delivery of the note.
1. The principal issue is whether the pleadings and the proof in the case at bar support the theory of the makers of the note that there was a failure of consideration entitling them to repudiate the note. Under ORS 71.028, failure of consideration is a defense available against one not a holder in due course, but such a defense must be pleaded and proven by the party asserting it. Beauchamp v. Jordan, 176 Or 320, 332, 157 P2d 504 (1945).
The defendants' answer was ambiguous. The plaintiffs and the trial court apparently thought the defendants *34 were contending that there had been no consideration to support the note. The defendants, meanwhile, apparently thought they had pleaded a defense of failure of consideration. In the absence of a motion by the plaintiffs to make the answer more definite and certain, it probably pleaded both theories under ORS 71.028.
At the trial, however, the defendants rested their case without any proof to rebut the presumption of ORS 71.024 that a note has been given for a valuable consideration. Neither did they offer any evidence to show that a failure of consideration occurred at some time after delivery. The defendants rested after stating merely that the real estate transaction had not been consummated. The plaintiffs swore that the defendants refused to proceed with the transaction. No reason for such refusal was disclosed by either plaintiffs or defendants. The trial court held on these facts that no defense to the note had been proven.
2. The note, when given to the brokers, was a deposit to accompany a revocable offer. The sellers' acceptance of the offer was "valuable" consideration under ORS 71.025. See Kirk v. Schumeth, 92 Ohio App 442, 110 NE2d 803 (1952). The existence of consideration, rather than its adequacy, is the issue under ORS 71.025.
3, 4. The defendants under their pleading tried to prove a failure of consideration. Their burden was the same as that which they would have had to bear had they as plaintiffs been seeking to recover from a broker a cash deposit upon the ground that the contemplated transaction had not been consummated. If the brokers had been holding cash instead of commercial paper, any purchaser seeking the return of his deposit would have had the burden of showing why it *35 should be returned. McKeen v. Boothby, 129 Me 324, 152 A 53 (1930). Cf. Anderson v. Stanwood, 178 Or 306, 167 P2d 315 (1946) (action to recover entrusted money). By the same reasoning, a purchaser who seeks to repudiate his commercial paper must show some legitimate reason for doing so. A maker's signature on a note is still a jural act in this state.
5, 6. A purchaser who has made a deposit ordinarily is entitled to recover earnest money still in the possession of the broker, if the sale has failed through no fault of such purchaser. Gosslin v. Martin, 56 Or 281, 107 P 957 (1910); McKeen v. Boothby, supra; Annotation, 38 ALR2d 1382 (1954). But he is not entitled to recover where his own fault prevents the sale. Wynkoop v. Shoemaker, 37 US App DC 258 (1911); Conness v. Baird, 124 SW 113 (Tex Civ App 1910). Recovery of the deposit is generally allowed a prospective purchaser where the parties to the contract have mutually rescinded without expressly disposing of the deposit. Messer Real Estate & Insurance Co. v. Ruff, 185 Ala 236, 64 So 51 (1913). Preferably, in such cases, all parties are before the court or can be brought into the case, and the seller, as well as the broker and the buyer, can be heard. See Annotation, 33 ALR2d 1090 (1954).
7. Under the rules and regulations published by the Oregon Real Estate Department, pursuant to ORS 696.240, all funds received by a broker as earnest money must be deposited in a neutral escrow depositary or in a clients' trust account. Oregon Administrative Rules, ch 863, § 10-025. The broker holds such funds in effect as an escrow for both parties. Lasen v. Knauer, 14 Ill App2d 64, 143 NE2d 66 (1957).
8. In the case at bar, the purchasers knew that the brokers were holding the note (as they would have held *36 cash) as agents for the account of the sellers. When the sellers accepted the offer for which the deposit was an earnest, the sellers acquired an interest in the proceeds of the note. Admittedly, the brokers had only a limited interest in the proceeds of the note in their own right, under the facts proven. (The brokers may have had some contractual right against all or part of the proceeds of the note under a separate contract between themselves and their clients, the sellers, but that matter is not before us. See Gosslin v. Martin, supra at 282-283.)
9-12. Except for the special rules governing negotiable instruments, on the facts before us the brokers would not be the real parties in interest, and in an action to recover an ordinary contract debt would be embarrassed by the real-party-in-interest statute. ORS 13.030; Sturgis v. Baker, 43 Or 236, 72 P 744 (1903). However, where an action is brought upon negotiable paper, the maker of the instrument is generally estopped to deny that the payee-holder is the real party in interest. See ORS 71.050 (right of holder to sue in his own name), and Hill v. McCrow, 88 Or 299, 308, 170 P 306 (1918). See also Kirk v. Schumeth, 92 Ohio App 442, supra. Compare West & Wheeler v. Longtin, 118 Wash 575, 204 P 183 (1922), with Shelton v. Sulek, 5 Ill App2d 186, 125 NE2d 313 (1955) (denying recovery by a broker). Accordingly, the objection that the plaintiffs were not the real parties in interest was not available. The action being one upon a note, the holders were proper parties.
The plaintiffs as holders of the instrument were entitled to sue upon it. The plaintiffs proved their prima facie case. The burden then fell upon the defendants to prove some sufficient reason for defeating recovery upon the instrument. They succeeded *37 only in proving that the rights of other parties would be involved in the event the purchaser and the seller should assert rival claims to the proceeds of the note after its liquidation. They proved no reason why the instrument should not be enforced according to its terms.
Since, under Oregon law, the brokers hold the note solely as escrow agents, any attempt by them to deal unilaterally with the proceeds of the note necessarily would bring into issue the respective rights of the sellers of the property and the erstwhile purchasers thereof. While it may be argued that it is unrealistic, on the pleadings in this case, to terminate judicial focus at the "bare note," without regard to the relationship between the several parties to the underlying transaction, it appears that the only issue in this case on the pleadings is whether the holder of a valid demand note may, within its terms, reduce it to cash.
13, 14. The note was supported by valuable consideration. There is, obviously, the possibility that rival claims to the proceeds of the note in the hands of the broker eventually could lead to other litigation. There is, however, no need to presume that the brokers are incapable of disposing of the proceeds of the note as the interests of the buyer and seller may appear. If the parties to the present action had been interested in avoiding a multiplicity of actions, they could have solicited intervention by the sellers so that the rights of all concerned could have been resolved in one action. ORS 13.160. The sellers were not, however, indispensable parties under ORS 13.110. The action before us could be, and was, disposed of without affecting the rights of the sellers.
Affirmed. | e813369ffe29204ea8de2105a2b58e7715f965763b8b0c23925b0854710c951c | 1963-11-13T00:00:00Z |
361e6387-cdd1-4437-90be-dffbba8ae60e | Myers v. Staub | 201 Or. 663, 272 P.2d 203 | null | oregon | Oregon Supreme Court | Affirmed June 23, 1954.
*664 David Spiegel argued the cause for appellants. On the briefs were Lenske, Spiegel, Spiegel, Martindale & Bloom, of Portland.
H.H. Phillips argued the cause for respondent. With him on the brief were Griffith, Phillips & Coughlin, of Portland.
Before LATOURETTE, Chief Justice, and WARNER, ROSSMAN and PERRY, Justices.
AFFIRMED.
WARNER, J.
Pursuant to a stipulation of the parties, the action of Vera Myers, widow of Byron Myers, against Raymond R. Staub and Portland General Electric Company and the like action of Lois Myers, widow of Robert Myers, against the same defendants were consolidated for trial and thereafter tried without the intervention of a jury. The plaintiffs obtained substantial judgments against the defendant Staub, who is not a party to this appeal. Both plaintiffs, however, appeal from a judgment dismissing their respective complaints against the defendant Portland General Electric Company (hereinafter referred to as the "electric company"). Their appeals to this court were also combined for argument.
*665 The joint presentation of these cases in the trial court and in this court was a logical consequence of the strangely identical circumstances which preceded and accounted for the deaths of Byron Myers and his son, Robert Myers, both coworkers in the employ of the defendant Staub on his dairy farm in Clackamas county. Their deaths occurred on succeeding days at the same place on the Staub farm and apparently from the same cause. This situation gives rise to substantially the same facts pleaded in both causes of action and likewise accounts for the same questions of law that are projected in each cause. We will for the purposes of this opinion treat both causes as identical.
Both actions were brought under the provisions of the Employers' Liability Law (ORS 654.305 to 654.335 [heretofore in prior codes known as the Employers' Liability Act]) to recover damages for the deaths of plaintiffs' respective husbands alleged to have resulted from the negligence of the defendants Staub and the electric company in maintaining and supplying electricity to a power line hung too close to the ground.
The electric company here demurs to the complaints on the ground that they do not state a cause of action against it. Since we feel that the complaints are vulnerable to such attack, our examination of the facts is limited to the allegations in the complaints which, insofar as pertinent to this decision, are as more particularly pleaded in the complaint of plaintiff Lois Myers reading:
*667 In Paragraph VIII we find the electric company's violation of the Employers' Liability Law stated as follows:
In the complaint of the plaintiff Vera Myers the paragraphs of corresponding number read the same, *668 except the date September 3 is substituted for September 4 and the name Byron Myers is substituted for Robert Myers.
The Employers' Liability Law is both a remedial and preventive statute providing a cause of action to certain individuals named therein against an employer for injury or death of an employee engaged in various hazardous occupations and requiring a high caliber of devices, care and precautions for the safety of those employees. It deprives the employer of the common law defenses of contributory negligence, the fellow servant rule and the assumption of the risk doctrine. Moreover, in an action for the death of an employee, the amount recoverable is not subject to the limitation of $20,000 found in the wrongful death act. ORS 30.020.
In general, the Employers' Liability Law permits recovery where the injury or death results from certain hazardous conditions under the control of the employer and under which the employee is required to work.
1. It is not always necessary that the defendant be the injured workman's immediate employer but may be sufficient if such defendant's interlocking interests with the employer amount to "an intermingling of duties and responsibilities" so as to bring the relationship of the defendant to the workman within the spirit of the Employers' Liability Law. Drefs v. Holman Transfer Co. et al., 130 Or 452, 456, 280 P 505; Clayton v. Enterprise Electric Co., 82 Or 149, 161 P. 411.
2. The question for answer here is whether the facts as pleaded bring the instant cases within the embrace of the Employers' Liability Law as to the defendant electric company, as insisted by the plaintiffs. We are not inquiring whether defendant electric company *669 was or was not guilty of culpable negligence according to the standards fixed by the rules of common law. If it be assumed for the purposes of this discussion that the electric company is chargeable with culpable negligence within the rules of common law, the plaintiffs must, nevertheless, fail in their respective actions unless the provisions of the Employers' Liability Law apply to the facts disclosed by their complaints, because each plaintiff is suing in her individual capacity. If the Employers' Liability Law applies to the facts as alleged by their respective complaints, the plaintiffs in their individual capacities are then entitled to sue. If we find that the statute does not apply and if the defendant electric company is liable in damages for common law negligence, then the representatives of the decedent spouses of the respective plaintiffs must sue. Jylha v. Chamberlain, 168 Or 171, 173, 121 P2d 928; Saylor v. Enterprise Electric Co., 106 Or 421, 424, 212 P 477. If the Employers' Liability Law does not embrace a factual situation like the one pleaded in the instant case, the demurrer must be sustained, even though it is assumed that the defendant electric company was guilty of negligence according to common law standards. Saylor v. Enterprise Electric Co., supra.
Plaintiffs are adamant in their insistence that their respective complaints state causes of action against the electric company within the purview of the Employers' Liability Law. They observe, and we think correctly, that the five points of attack relied upon by the respondent electric company may properly be resolved into one, namely, the absence of and necessity for an allegation that the electric company had control over the means by which the decedents Myers met their deaths.
*670 As against the defendant Staub the plaintiffs allege, as the primary element of his negligence, the presence of high voltage transmission lines controlled, operated and maintained by him too close to the ground. The "control", by which they seek to establish liability in the electric company, is predicated upon the electric company's alleged ability to cut Staub's power at its source and thus avoid the dangers incident to the inadequate insulation of the power line on the Staub premises arising from suffering the high voltage lines to remain hanging too close to the ground. Concerning such a situation, plaintiffs assert that "No better `insulation' existed than the cutting off of the power at its source". In essence, plaintiffs contend for a species of "remote control" in the electric company as a basis for its liability to plaintiffs, that is, "remote" from the instrumentality which caused the Myerses' deaths.
Plaintiffs epitomize their concept of the electric company's "control" by claiming that the complaint alleges "in effect" that the electric company "failed to provide that `insulation' within its control, i.e., cutting off the supply of electrical energy, when it had knowledge of the fact that such insulation was required."
Plaintiffs rely upon Clayton v. Enterprise Electric Co., supra, and McKay v. Pacific Bldg. Materials Co., 156 Or 578, 68 P2d 127, in support of their contention that, as employees of defendant Staub, the decedents had the protection of the Employers' Liability Law in their relation to the electric company.
The facts in the case of Clayton v. Enterprise Electric Co., supra, are in many respects similar to the facts as alleged in the complaints of the appellants here. *671 The action in the earlier case was brought by a surviving spouse under the Employers' Liability Law against an electric company which had supplied electric current to Clayton's employer Roe. The fundamental difference between the Clayton case and the one at bar is that in the former the plaintiff alleged and proved "that the defendant [electric company] was the owner and controlled and operated the transmission system, and the wires and appliances by which the currents of electricity were carried into and connected with the motor and pumping machinery" of decedent's employer Roe (82 Or 151). We also learn from a reading of Clayton that the defective switch was the immediate cause of the employee's electrocution and that this switch was a part of the equipment which the Enterprise Electric Company owned and installed.
In the case at bar, however, there is no allegation whatsoever that the electric company had any ownership or control over the wires which were involved in the deaths of plaintiffs' decedents. Indeed, the plaintiffs here with precise particularity allege a directly contrary situation in Paragraph III of their respective complaints where, it will be observed, they say "said lines were operated, controlled and maintained by defendant Raymond R. Staub [decedents' employer]" and where in Paragraph IX of their respective complaints they charge that defendant Staub "installed, operated, controlled and maintained * * * said high voltage transmission lines".
This court in the Clayton case expressly recognizes the rule that the supplier of electrical energy is not responsible under the Employers' Liability Law for injuries caused by equipment over which it has no supervision or control, and our judgment in that case *672 was predicated upon the fact that the electric company did have such control.
The Clayton case has been criticized as containing "language more sweeping than was necessary". Turnidge v. Thompson, 89 Or 637, 653, 175 P 281. Notwithstanding that Clayton is vulnerable to this charge, it still compels the conclusion that the Employers' Liability Law does not cover a situation in which there is no third party control of the injured employee or any control of the offending instrumentality involved. There is nothing in the complaints of the plaintiffs in this matter which remotely indicates that the electric company had any ownership or claimed any ownership in the offending transmission lines or in any part of the same that were situated on the Staub property or that it had "installed, operated, controlled and maintained" the same or any part thereof, as was evident in the Clayton case.
There are no allegations in the complaints from which it may be inferred that the defendant electric company had any relationship to the Myerses as Staub's unfortunate employees. The electric company's relationship, if any, to the instrumentality causing the deaths of the Myerses, that is, to the defective insulation of the wires on Staub's property, can be gleaned only by inferring that, as the supplier of the electricity flowing over said lines, the company could at some place "insulate" the same by cutting off the power at its source.
The other decision relied upon by plaintiffs in support of their proposition is McKay v. Pacific Bldg. Materials Co., supra, 156 Or 578, 68 P2d 127. This case also recognizes the rule that control of the instrumentality involved is the essential element to a cause of action under the Employers' Liability Law *673 against a defendant who is not the employer of the injured employee. In that case, as in the Clayton case, the offending instrumentality was under the control of one other than the employer of the injured employee. In our own research we are unable to discover any case decided by this court in which a third party other than the injured party's employer was held to liability under the Employers' Liability Law when such third party had no control over the instrumentality causing the death or injury to the employee.
It is also of interest to observe that every act of negligence charged against the electric company in the complaints is referable solely to a duty of the master to his employees, namely, to furnish them a safe place in which to work. Under the complaints as drawn, this duty was beyond question incumbent upon Staub as the employer of plaintiffs' decedents. Upon him, and him alone, reposed the duty, required by the Employer's Liability Law in the instant matter, to see that "In the transmission and use of electricity of a dangerous voltage, full and complete insulation is provided at all points where * * * employes of the owner * * * transmitting or using the electricity are liable to come in contact with the wire". ORS 654.310(7). The supposed failure of the electric company to control the electric current flowing over the improperly insulated wires, which the complaints tell us the defendant Staub owned and "installed" and "were operated, controlled and maintained" by him upon his property, was not the proximate cause of the deaths of plaintiffs' decedents but, on the contrary, is properly attributable to the duty of the defendant Staub, as the Myerses' employer and master, to furnish the Myerses as his employees a safe place in *674 which to work. See Warner v. Synnes et al., 114 Or 451, 466, 230 P 362, 235 P 305, 44 ALR 904.
Drefs v. Holman Transfer Co. et al., supra, 130 Or 452, 280 P 505, was an action for the recovery of a death claim under the Employers' Liability Law. The decedent Drefs at the time of the accident was an employee of Pacific Telephone & Telegraph Company and engaged in behalf of that company in making an excavation in one of the streets of Portland. While so doing, he was exposed to the dangers incident to the operation of trucks of the defendant Holman Transfer Company and the operation of vehicles of the defendant Arrow Ambulance Company; and as a result of their negligent and careless operation, plaintiff's decedent was run against and killed. No negligence was charged against the telephone company as decedent's employer, nor was it made a party to the action. Demurrers to the complaint by the transfer company and the ambulance company were sustained on the ground that it did not state a cause of action against them under the Employers' Liability Law.
In the matter now before us, as in the Drefs case, there is no intermingling of duties and employees of the Myerses' employer and those of the defendant electric company in the work being prosecuted on the Staub property, nor are there any interlocking interests. This court in the Drefs case, after observing that the Employers' Liability Law "was a beneficent statute and as construed by this court, which has gone to the extreme of liberality in construing it, has resulted in extending to employees in hazardous occupations a degree of protection theretofore unknown", then proceeds to review the cases which had been decided up to that time wherein such liberality was exemplified by the appearance of "interlocking interests *675 between the different employers." Drefs v. Holman Transfer Co. et al., supra, at page 455. Necessarily in this review of cases of that character, Mr. Justice McBRIDE included Clayton v. Enterprise Electric Co., supra, 82 Or 149, 161 P 411, as the predecessor of those which followed, namely, Turnidge v. Thompson, supra, and Rorvik v. North Pac. Lumber Co., 99 Or 58, 190 P 331, 195 P 163. Concluding this analysis, Mr. Justice McBRIDE then quotes from the Rorvik case and observes (130 Or 459):
3, 4. Applying the foregoing rule laid down by Mr. Justice McBRIDE in the Drefs case to the instant matter, we find nothing in the complaints before us which *676 alleges the creation of a relationship between the defendant electric company and plaintiffs' decedents "by contract or otherwise different from that which * * * [the electric company] sustains to the whole public."
"Control", in the sense that a third party is to be subjected to liability under the Employers' Liability Law as we conceive the meaning of "control" and contrary to the conception of the "remote" or nebulous "control" as defined by plaintiffs, means a primary control of the physical instrumentalities immediately in use and which are the media of the injuries or death giving rise to a claim of damage under that law. Here it would be extravagant to say that the ability to cut off or turn on power flowing over Staub's wires, when not installed, owned or controlled by the electric company, is that kind of "control".
The application of "control" sought to be made here by the appellants is not the intent of the law; and such an unwarranted judicial extension of the act might, as Mr. Justice McBRIDE warns in the Drefs case, lead to the repeal of this most beneficent and enlightened legislation.
Whatever merit may be found in appellants' argument is encompassed in their statement of the common law rule to the effect that "the supplier of electrical energy is liable for injury caused on the land of another where it knowingly supplies electrical energy to a defective or hazardous condition thereon." It is appellants' position that they can, if necessary, "borrow" a cause of action from the common law and with it enjoy the advantages bestowed by the Employers' Liability Law. It is a proposition which we cannot and do not sanction. Indeed, the seed to our *677 disapproval found earlier expression in Drefs v. Holman Transfer Co. et al., supra, where we said, at page 459:
The lower court is affirmed. | daea8acc75503ef03ad17da7a12322c24fef2cc41510b4422ea187ec6105744e | 1954-06-23T00:00:00Z |
79aa9f0f-1b73-4677-8bf1-f09020a9837b | Coleman v. Coleman | 236 Or. 73, 386 P.2d 811 | null | oregon | Oregon Supreme Court | Affirmed November 20, 1963.
J.R. Campbell, John Day, argued the cause for appellant. On the brief were Yokom & Campbell, John Day.
William M. Holmes, Bend, argued the cause for respondent. On the brief were De Armond, Goodrich, Gray & Fancher, Bend.
Before McALLISTER, Chief Justice, and ROSSMAN, O'CONNELL, GOODWIN, DENECKE and LUSK, Justices.
AFFIRMED.
*74 ROSSMAN, J.
This is an appeal by the defendant, wife, from a decree of divorce and child custody that was entered by the circuit court in a suit which the plaintiff, husband, instituted. The complaint charged the defendant with cruel and inhuman treatment. It prayed
The answer, in addition to denying plaintiff's charges of cruel and inhuman treatment, made similar charges against the plaintiff. It prayed that the custody of the two children which were born of the union be granted to the defendant.
The defendant, in appealing, does not challenge the part of the decree which awarded the divorce to the plaintiff; nor does she present any contentions concerning property rights or support money. She asks this court, however, to modify the decree so that she will be given custody of both children. The boy, Ronnie, who was awarded to plaintiff, the father, was at the time of the entry of the decree, three years of age. The girl, Kelly, who was awarded to the mother, was, at that time, 17 months of age. The defendant, in testifying, stated: "I am not saying that *75 the man (the plaintiff) isn't fit" to have the custody of the boy.
The trial judge who gave careful consideration to the evidence, at its conclusion rendered his decision orally. He stated in part:
1, 2. Gonyea v. Gonyea, 232 Or 367, 375 P2d 808, declared, as have many other decisions, that in situations such as this the welfare of the children is of paramount importance. In determining that issue this court has access, generally, to nothing concerning the parties except the silent, unspeaking record. The record displays no warmth or feeling. None of its words has more color than any other. When judged solely by her testimony, the shrew may be a better wife than a sainted mother and make a good husband appear to be a failure. The record rarely reveals anything of the parties except the words they employ while testifying. A moment in the courtroom such as the trial judge experienced is a superior index to the truth than the transcript of what the witnesses said. We do not know even so unimportant a fact as the age of either the plaintiff or the defendant. Each has been married before. The defendant is the mother of two other children each being born in a different marriage. The plaintiff also had a previous venture in matrimony. *77 His employer, as a witness, spoke in terms of high commendation of the plaintiff as an employee and as a man. The employer's wife will take care of the boy, Ronnie, while the plaintiff is at work. The employer's wife is the mother of a little daughter and is a former school teacher. That arrangement appears to be very suitable.
In instances such as this where people have married, become parents, and then have entered the divorce court it is rarely possible for a court to do justice for the parties and their children.
In taking care of the little girl, Kelly, and the two children by her previous marriages, the defendant, while she works, is forced to put the children in a home that appears to be similar to a small scale day nursery. She resorted to more than one expedient before she found this home. The plaintiff (father) is anxious that his children should know each other and their parents.
Plaintiff and defendant appear to have no bad habits except the defendant displays an uncontrollable propensity to quarrel and in the course of the quarrels hurl forth groundless charges. The tense and strained atmosphere thereby created cannot be suitable for a home in which children live. Her disposition to engage in tense wrangling appears to have been the fault that brought the parties to the divorce court.
We believe that the thoughtful decree worked out by the trial judge is as good as can be accomplished in this case.
We affirm the decree. | 5b9c7de9ff0bf12cddbbae4d825437b5a3c8d273dcefd82944bb9a69808040db | 1963-11-20T00:00:00Z |
a7fd9a82-6c57-4d10-9340-b08c10ac9ac7 | Multnomah County v. Burbank | 235 Or. 616, 386 P.2d 444 | null | oregon | Oregon Supreme Court | Reversed November 6, 1963.
Willis A. West, Deputy District Attorney, Portland, argued the cause for appellant. On the briefs were George Van Hoomissen, District Attorney, and Herbert A Perry, Deputy District Attorney, Portland.
*617 James O. Goodwin, Oregon City, argued the cause for respondents. With him on the brief was Reuben Lenske, Portland.
Before McALLISTER, Chief Justice, and PERRY, O'CONNELL, DENECKE and LUSK, Justices.
REVERSED.
McALLISTER, C.J.
This is a proceeding brought by Multnomah County to condemn for use as a public park certain land owned by defendants. On the day set for trial of the case plaintiff moved for a voluntary nonsuit which was granted. Defendants thereafter filed a cost bill including an item of $1,800 as an attorney's fee, to which item the plaintiff objected. After a hearing the court allowed the cost bill, including the attorney's fee in the sum of $1,800. Plaintiff appeals.
The question presented is whether ORS 281.330 authorizes the allowance of an attorney's fee to defendant in a condemnation proceeding instituted by a county in which a judgment of voluntary nonsuit is entered prior to trial. Since the answer depends on the construction of ORS 281.330, the section is here set out in full:
1, 2. It is the general rule that attorney's fees are not allowable to the property owner in a condemnation proceeding in the absence of a statute authorizing their allowance. Cereghino v. State Highway Com., 230 Or 439, 370 P2d 694 (1962); Re Petition of Reeder, 110 Or 484, 222 P 724 (1924); 31 ALR 352; 121 ALR 84. Even costs and disbursements are not allowable against the state unless authorized by statute. State v. Ganong, 93 Or 440, 454, 184 P 233 (1919); Warm Springs Irr. Dist. v. Pacific L. Co., 89 Or 19, 23, 173 P 265 (1918).
Our first statutes setting out the procedure for condemnation proceedings by corporations possessing the power of eminent domain were enacted in 1862. See Deady, General Laws of Oregon, 1845-1864, Ch 8, Title III, p 670, §§ 40-52. Section 49 of the 1862 act provided for the recovery of costs by the defendant in the following language:
It will be noted that the defendant's right to recover his costs and disbursements was made contingent upon the recovery of an amount equal to or greater than that tendered by the condemnor. This statute established the policy of the state which has been uniformly followed in later legislation.
The first Oregon statute allowing attorney's fees in condemnation proceedings was passed in 1913. Chapter 49, Oregon Laws 1913, amended § 49, Laws 1862, D 671, which in the meantime had been codified as § 6868, LOL, to read as follows:
The above section without further amendment is now codified as ORS 35.110, and applies generally to condemnation proceedings not governed by special statutes.
In 1918 this court held in Warm Springs Irr. Dist. v. Pacific L. Co., supra, that § 6868, LOL, as amended *620 by Ch 49, Oregon Laws 1913, did not authorize the allowance of an attorney's fee in a condemnation proceeding in which the condemnor took a voluntary nonsuit prior to trial. In that case this court said, 89 Or at 22, 23:
We turn now to consideration of the special statutes authorizing condemnation proceedings by a county. By ch 295, Oregon Laws 1917, a comprehensive act was passed governing the establishment of county roads and granting each county power to condemn *621 land for road and related purposes. Section 28 of the act provided that the procedure in county condemnation proceedings should be "as far as applicable, the procedure provided for in and by the laws of this State for the condemnation of land or rights of way by public or quasi-public corporations for public use or for corporate purposes * * *." It will be noted that by thus adopting the procedure specified for general condemnation proceedings the legislature obligated the counties to pay attorney's fees to a defendant if he recovered more than the county had tendered him prior to commencement of the action.
Apparently the counties and other public bodies were not eager to pay attorney's fees in condemnation cases. In 1919 the recovery of attorney's fees, except for the nominal statutory fee, was prohibited in condemnation proceedings brought by the State Highway Commission. See ch 182, Oregon Laws 1919. In 1923 the liability of counties for the payment of attorney's fees in condemnation proceedings was similarly limited to the statutory fee. Chapter 267, Oregon Laws 1923, amended § 28 of ch 295, Oregon Laws 1917, which in the meantime had been codified as § 4563, OL, to read as follows:
The counties remained free from liability for the payment of attorney's fees in condemnation cases until 1947, when such liability was again imposed by ch 553, Oregon Laws 1947, the pertinent portion of which reads as follows:
It will be noted that ch 553, Oregon Laws 1947, is now codified as subsections (2) and (3) of ORS 281.330, set out earlier in this opinion.
It will be further noted that when the legislature decided in 1947 to again subject the counties to liability for the payment of attorney's fees in condemnation proceedings, it used, with only one modification, the language of ch 49, Oregon Laws 1913, which had been *623 construed by this court in Warm Springs Irr. Dist. v. Pacific L. Co., supra.
The modification consisted of dropping from the 1913 version the provision requiring the attorney's fees to be fixed "at the trial." Except for that modification, there could be no question but that the legislature in 1947 had adopted the language of the 1913 act as construed by this court in the Warm Springs case.
Defendant in this case argues that the holding in the Warm Springs case was controlled by the provision in the 1913 statute requiring that the attorney's fees be fixed by the court "at the trial." It is true that the court in the Warm Springs case did discuss the effect of the words "at the trial", and may have based its construction of the statute in part on those words. We believe, however, that a careful reading of the opinion will show that the court based its decision primarily on the ground that the entire sentence comprising the statute should be read together, and that when so read "it must appear that the amount tendered by the plaintiff was less than the amount `assessed by the jury'."
In State v. Ganong, supra, this court held that the phrase used in the 1913 act "to be fixed by the court at the trial" meant that the attorney's fees must be fixed at the trial by the jury in a jury case, or by the court in a case tried without a jury. We think the legislature in omitting the words "at the trial" from the 1947 act intended only to permit the judge to fix the attorney's fees in a supplemental proceeding after the trial. As we pointed out in State Highway Com. v. Kendrick, 227 Or 608, 363 P2d 1078, this has been the uniform practice since 1947 in state highway condemnation *624 proceedings in which the allowance of attorney's fees was authorized by ch 553, Oregon Laws 1947, which also omitted the words "at the trial" from the 1913 act.
3. We think it would be judicial legislation to construe into § 2, ORS 281.330 a legislative intention that attorney's fees are authorized thereby even though there is no jury award to compare with the amount tendered before the commencement of the action. If the legislature intended to provide for the allowance of attorney's fees when the condemnor takes a nonsuit before trial, we think it would have so provided. The legislature did provide specifically in subsection (3) of ORS 281.330 for the recovery of attorney's fees in the event the condemnor abandons the proceeding after verdict. That circumstance seems to negative a legislative intent to allow attorney's fees in the case of an earlier abandonment.
The judgment of the lower court is reversed. | d84505716d30804abfa1397c146b86c17029f56bf1c0d28755d5ea18353ac4ee | 1963-11-06T00:00:00Z |
d23a3701-01aa-45a6-a08e-5e6694ce2b09 | State of Oregon v. PEEBLER | 200 Or. 321, 265 P.2d 1081 | null | oregon | Oregon Supreme Court | Reversed January 27, 1954.
*322 O.H. Bengtson, of Medford, and Leo Levenson, of Portland, argued the cause for appellants. With them on the brief was Irving C. Allen, of Medford.
Walter D. Nunley, District Attorney for Jackson County, of Medford, argued the cause and filed a brief for respondent.
REVERSED.
BRAND, J.
The defendants were convicted of the crime of contributing to the delinquency of minor children. The charging part of the indictment reads as follows:
The indictment was drawn under the provisions of that part of OCLA, § 23-1034 (ORS 167.210) which reads as follows:
For an understanding of this law we must look to the statute which defines child delinquency. It reads as follows:
The defendants contend that the provision of statute under which the indictment was brought is unconstitutional. By reason of our conclusion as to the sufficiency of the indictment, we find it unnecessary to *324 consider the attack upon the constitutionality of the statute except to state that prosecutions under OCLA, § 23-1034 have been before this court many times. State v. Eisen, 53 Or 297, 99 P 282, 100 P 257; State v. Dunn, 53 Or 304, 99 P 278, 100 P 258; State v. Gates, 98 Or 110, 193 P 197; State v. Stone, 111 Or 227, 226 P 430; State of Oregon v. Moore, 194 Or 232, 241 P2d 455; State v. Harvey, 117 Or 466, 242 P 440; State v. Du Bois, 175 Or 341, 153 P2d 521; State v. Nagel, 185 Or 486, 202 P2d 640; State v. Doud, 190 Or 218, 225 P2d 00. In the last four cases above cited, the convictions were affirmed. In no case has this court expressed doubt as to the constitutionality of the statute.
1, 2. The defendants' principal contention is that the indictment fails to allege facts sufficient to constitute the crime of contributing to the delinquency of a minor and that the court erred in failing to dismiss the case. No demurrer was presented to the court prior to the plea of not guilty. This court looks with disfavor upon challenges to the sufficiency of an indictment made after trial, and in a doubtful case we may give a more liberal construction to an indictment which has not been timely tested by demurrer. We recognize, however, that the sufficiency of the indictment may be challenged at a later stage of the proceedings, and we deem it our duty to consider the issue which is presented in this case.
3. Indictments brought in cases under the portion of the statute which is involved in this case must allege the specific act or acts relied upon as manifestly tending to cause delinquency, and must further allege that the specific acts charged did manifestly tend to cause delinquency. State of Oregon v. Moore and State v. Stone, both supra.
*325 4. The requirement that the tendency to delinquency must be "manifest" in the acts charged implies that those acts must be of such a character as to indicate of themselves a tendency to cause delinquency.
In People v. Lamanuzzi, 77 Cal App 301, 246 P 557, the information charged the defendant with furnishing wine to three minors. The court said:
There was no allegation that the alleged acts tended to encourage the minors to become persons within the provisions of the Juvenile Court Act, and the information was held bad.
In People v. Bergotini, 172 Cal 717, 158 P 198, it was charged that the defendant contributed to the dependency of certain children in that he induced the mother of the children to live in immoral relations with him. There was no allegation that the immoral acts were done in the presence of the children or had any direct effect upon their morals. The information was held insufficient.
In People v. Weber, 335 Ill App 215, 81 NE2d 5, the information reads as follows:
The court quoted from People v. Barnes, 314 Ill 140, 145 NE 391, as follows:
It was held that the information was insufficient.
In Reynolds v. State, 23 Ala App 333, 125 So 204, the complaint charged the defendant Minnie Reynolds with contributing to the delinquency of children by inducing the father to give her presents when the children needed the money, and by occupying the same room and bed with the father. The complaint was held demurrable.
In Stone v. State, 220 Ind 165, 41 NE2d 609, the defendant was charged in the language of the statute with acts tending to cause delinquency. The specific act charged was the giving of a cigarette to a minor. The charge was held insufficient.
In People v. Plocar, 411 Ill 141, 103 NE2d 612, the defendant was convicted for contributing to the delinquency of a minor. The charge was in the language of the statute which is similar to our own, but the specific act charged was that he did ask the child to get into his automobile to have a good time, and offering her $2.00. The information was held insufficient. The court said:
5. Being thus advised by the authorities as to the requirements of indictments under statutes similar to our own, we turn to the indictment in the case at bar, and we will consider first what does not appear in the indictment. First, the age of the defendants does not appear. They may have been infants, or suffering from senile decay. They may have been brother and sister or strangers. They may have been clothed or unclothed. No act is charged except sleeping, if sleeping can be deemed an act. It does not appear whether the children were awake or asleep, or whether they knew of the presence of the two defendants, or whether they knew of the relationship, if any, of the defendants, to each other. Stripped of its legal phraseology, the indictment alleges only that two people who may be of opposite sexes by reason of the nature of their first names, slept in a bed in the presence of four children. In our opinion the so-called act charged could not be said to manifestly tend to cause the children to become delinquent. Under this indictment our New England forebears could have been convicted for performing the highly moral act of bundling, and we suppose there may have been instances in which poor people, living in congested slum areas, may have slept in the same bed and in the presence of children, innocently though unmarried.
A clear distinction should be made between the inferences which may be drawn from evidence, on the one hand, and the requirements of an indictment, on the other. Evidence that persons of the opposite sex were found sleeping together in bed might raise an inference *328 of illegal conduct, if the indictment properly charged a crime. But the indictment would not be sufficient if it merely stated facts from which inferences of criminality might be drawn by a jury.
The indictment in the pending case did not state facts sufficient to constitute a charge of crime and the judgment of conviction is reversed. | cc781bf474c3ebdbea1c60aa01d9ed0741e2fec81cb1943c6aedbbb033670462 | 1954-01-27T00:00:00Z |
40a8e5a2-2cf8-4eab-b970-049e31212fc9 | Hassebroek v. Norman | 236 Or. 209, 387 P.2d 824 | null | oregon | Oregon Supreme Court | Affirmed December 24, 1963.
Lamar Tooze, Jr., and Arden E. Shenker, Portland, argued the cause for appellant. With them on the briefs were Tooze, Powers, Kerr, Tooze & Morrell, Portland.
Mel Kosta, Portland, argued the cause and filed a brief for respondent.
*210 Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, Justices.
AFFIRMED.
SLOAN, J.
This was an action by a small child, through a guardian ad litem, for injury alleged to have been caused by the negligence of defendant. In this unfortunate accident plaintiff suffered the loss of the sight of one eye. The verdict and judgment were for the defendant. Plaintiff appeals.
There was no significant dispute in the facts. On July 4, 1961, defendant purchased for her own small children some small devices with the trade name of "Skyflier." The device consisted of a small hammer-like gadget into which could be placed an explosive cap, like that used in a cap pistol. On top of the cap was placed a small feathered dart. When prepared for shooting the hammer was hit upon a hard surface which would cause the cap to explode with enough energy to throw the dart several feet into the air.
Immediately following defendant's return to her home after the purchase of the "Skyflier" her six year old son fired his device and the dart struck plaintiff in the eye. Defendant was present and aware of the activity of the children. It was claimed that she was negligent because she did not caution the children nor impose any safeguards to prevent an accident. Plaintiff presented the case as one involving an attractive nuisance. The assignments of error are primarily directed at requested instructions not given by the court as well as to instructions given.
1, 2. We think the case did not involve the doctrine of attractive nuisance. There is no problem here of a *211 trespassing child. Pocholec v. Giustina et al, 1960, 224 Or 245, 355 P2d 1104. Rather it was a case involving the usual concepts of tort liability albeit one in which the inherent danger from the use of the instrumentality was in issue. The issues were fully explained to the jury and we find no error in the challenged instructions given nor in the refusal to give the ones requested. There was language used in two instructions that was not letter perfect. The issues submitted to the jury, however, were direct and uncomplicated. The jurors could not have been misled by the language defendant criticizes.
3, 4. Another assignment complains because the trial court refused to permit a demonstration of the "Skyflier" to the jury. The trial judge thought that the evidence otherwise submitted had sufficiently informed the jury as to the use of the device. A request for a court room demonstration creates a problem peculiarly directed to the trial judge. Foster v. AgriChem, Inc., 1963, 235 Or 570, 385 P2d 184.
We can only conclude that this case was fairly and fully submitted to the jury.
Affirmed. | b1bd20f30f71b8376cd7a6778820cc00beb6eb03b9e5b2bc78df49971ff882e7 | 1963-12-24T00:00:00Z |
b5d65387-60dd-44f9-9acf-32b85b7c08f9 | State v. Eyle | 236 Or. 199, 388 P.2d 110 | null | oregon | Oregon Supreme Court | Affirmed December 24, 1963.
*200 Arthur R. Barrows, Deputy District Attorney for Umatilla County, Pendleton, argued the cause for respondent. With him on the brief was Richard J. Courson, District Attorney for Umatilla County, Pendleton.
Donald D. Yokom, Pendleton, argued the cause and filed a brief for Appellant.
Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, O'CONNELL, GOODWIN, DENECKE and LUSK, Justices.
AFFIRMED.
PERRY, J.
Defendant was indicted for the violation of ORS 164.670. Trial was had without a jury before the Circuit Court of Umatilla County. From a judgment finding him guilty as charged, defendant appeals. The facts are not in dispute.
1-3. Defendant's argument upon appeal is that the prosecution failed to prove a necessary element of the crime of using a motor vehicle without authority; that *201 the defendant took the automobile "without intent to steal it." ORS 164.670 provides:
ORS 164.670 describes the offense commonly referred to as "joy-riding." The statute is designed to condemn the acts of a person who takes another's automobile without permission, but without the intent to steal it or permanently deprive the owner of its use. Taking an automobile with the intent to steal it or permanently deprive the owner of its use is prohibited by the larceny statute. ORS 164.310. Thus the "joy-riding" statute stands as an "included offense" of larceny, having all the elements of larceny except the intent to steal. See Perkins on Criminal Law, First Edition, Ch 4, p 231.
4. By employing the words, "without intent to steal," the legislature meant to clearly distinguish the crime of "joy-riding" from the greater crime of larceny and provide a specific penalty therefor. The words were not included so as to constitute an additional element for the state to prove.
A similar question was presented in State v. Gilson, 113 Or 202, 232 P 621. There the defendant was convicted of the crime of fornication under a statute (Or L § 2077) which described the prohibited conduct as that which "does not make the act rape." In reply to the argument that this was an element for the state to plead and prove, the court said at page 207:
We likewise hold that the phrase "without intent to steal" in ORS 164.670 is not part of the definition of the crime of using a vehicle without authority and need not be proved.
5, 6. It is next contended that the evidence indicates that the crime committed was larceny rather than "joy-riding" since the defendant did, in fact, intend to *203 steal the automobile. Though this may well be true, defendant cannot complain of the conviction for the lesser offense. The state may elect to obtain a conviction for the lesser or included offense even though the accused is guilty of the greater offense.
In State v. Harvey, 119 Or 512, 249 P 172, we upheld a conviction of the crime of an attempt to commit sodomy though the evidence tended to show that the crime of sodomy was actually consummated. Section 1552, Or L, now ORS 136.660, provides:
The court concluded at page 515 that in light of this statute, "no sound reason can be advanced for acquitting one charged with only the lesser offense upon evidence tending to prove the substantive offense."
This principle has also been applied in the case of a conviction of manslaughter but proof of murder (Price v. State, 152 Miss 625, 120 So 751; Bradshaw v. Commonwealth, 174 Va 391, 4 SE2d 752; Wysong v. State, 66 Tex Cr 201, 146 SW 941; State v. Morrison, 52 Idaho 99, 11 P2d 619; Holmes v. State, 54 Okla Cr 111, 16 P2d 264); conviction of larceny but proof of robbery (Coon v. State, 109 Ark 354, 160 SW 226; Shannon v. State, 170 Tex Cr 91, 338 SW2d 462, cert den 364 US 935, 81 S Ct 386, 5 L Ed2d 369); conviction of petit larceny but proof of grand larceny (People v. Lefkowitz, 248 NY Supp 615; State v. Morris, 149 Minn 41, 182 NW 721); conviction of a lesser sex crime but proof of rape (People v. Caminiti, 28 NYSupp2d 133; Lewis v. State, 171 Tex Cr 231, 346 SW2d 608); conviction of lewd and lascivious conduct but proof *204 of assault with intent to rape (Petty v. Deane, 73 Idaho 136, 248 P2d 218); conviction of robbery without a deadly weapon but proof of robbery with a deadly weapon (Martin v. State, 100 Fla 16, 129 So 112); conviction of assault and battery but proof of false arrest or imprisonment (Alder v. Commonwealth, 307 Ky 471, 211 SW2d 678); conviction of second degree burglary but proof of first degree burglary (People v. Novo, 12 Cal App2d 525, 55 P2d 915, 56 P2d 560); and conviction of second degree arson but proof of first degree arson (State v. Rudman, 327 Mo 260, 37 SW2d 409).
It is thus clear that the fact that the defendant might have been guilty of the greater crime of larceny is no defense to his conviction under ORS 164.670.
7. Defendant's final contention is that even though "without intent to steal" is not an element of the crime of using a motor vehicle without authority, it must nonetheless be proved since it was alleged in the indictment. There is no merit in this argument. A specific intent is not an element of the crime charged.
The judgment is affirmed. | 128201a054855f5e1a607c9cbefe5469bc4c3cd9f04cc246d594cb6da3128939 | 1963-12-24T00:00:00Z |
316bc084-b771-4a02-9e21-77b0bd77d8a0 | BURNETT v. Hatch | 200 Or. 291, 266 P.2d 414 | null | oregon | Oregon Supreme Court | Reversed and remanded January 27, 1954.
*292 Bruce J. Manley, of Medford, argued the cause for appellant. With him on the brief were Hanley & Manley and Edward B. Hanley, Jr., of Medford.
Stanley C. Jones, Jr., of Medford, filed a brief for respondents.
REVERSED AND REMANDED.
PERRY, J.
This is a suit brought by the plaintiffs to quiet their title in and to certain real property described as follows:
*293 The defendant appeared, alleging an interest in the real property above described, and the trial court determined upon plaintiffs' motion for a judgment on the pleadings that the defendant had no interest in or to the said real property, thereupon quieting the title in the plaintiffs free and clear of defendant's claims. From this adverse ruling the defendant has appealed.
The plaintiffs' complaint is in the customary form, alleging that they are the owners in fee simple of the real property described therein, and in sole possession thereof, subject to a mortgage executed by the plaintiffs to C.E. Gilkey and Grace Gilkey, husband and wife, on the 27th day of June, 1951, and duly recorded, and calling upon defendant to set up any claim, or claims, she may have in or to the real property.
The defendant answered, denying the plaintiffs' ownership, admitting the mortgage to C.E. Gilkey and wife, and by what she terms an "answer and counterclaim" (but which in fact is no more than an answer), sets forth the following facts: That she was prior to March 31, 1952, the wife of one Hugh Rae Hatch, also known as H.R. Hatch, having obtained a divorce from the said Hatch on that date; that the decree of divorce awarded to her, as her separate property, the property described in plaintiffs' complaint; that her husband had conspired with one Morris Bailey to convey the property to the said Morris Bailey to defraud the defendant of her rights in the property, and that in accordance with the conspiracy, conveyance was made on April 28, 1946, and duly recorded; "that at the special instance and request of Hugh Rae Hatch a portion of the purchase price of said premises was paid from the personal funds of Eva M. Hatch"; that after the conveyance to Bailey, defendant's husband left the state *294 of Oregon and has since evaded service of process and attempts to contact him; that the plaintiffs and their predecessors in title took the conveyance to the property with full knowledge of the defendant's rights; that on September 15, 1945, a judgment was entered in the divorce suit in favor of the defendant for the sum of $200 as temporary support money, and for the further sum of $100 as attorney's fees, that had not been paid or satisfied.
The plaintiffs filed an answer to the so-called counterclaim (which in fact is a reply to the defendant's answer), and admitted that Hugh Rae Hatch and the defendant had been husband and wife, and for a portion of the time that this relationship existed Hugh Rae Hatch had been the owner of the land in question, in which defendant had a dower right; that Hugh Rae Hatch had commenced a suit for divorce against the defendant Eva M. Hatch, and that subsequent to the commencement of the divorce suit the husband had conveyed the property to Morris Bailey, and subsequently through other hands to these plaintiffs; and admitted that there had been entered a judgment in favor of Eva M. Hatch in the sum of $200 as temporary support money, and the sum of $100 as attorney's fees, on September 15, 1945. Plaintiff also admitted that in the final divorce decree of March 31, 1952, the trial court had awarded to the defendant as her separate property the property in question. By way of a further answer, plaintiffs alleged that the complaint as filed by the defendant's husband, Hugh Rae Hatch, in the divorce suit did not describe any of the real property, and particularly the property in question, nor did the answer in the divorce suit as filed by the defendant describe the real property or pray for an award of such real property as alimony (a copy of plaintiff's complaint *295 and of defendant's answer in the divorce suit is incorporated by reference in the answer of the plaintiffs' in the suit before us); that on the 31st day of March, 1952, the date of the trial of the divorce suit, by leave of the trial court an amendment was made in the defendant's answer describing the real property in question, and on that date a decree was entered granting the defendant a divorce from Hugh Rae Hatch and setting off to her as her sole property the property in question (all of which is shown by the decree, a copy of which was incorporated by reference and made a part of the plaintiffs' so-called answer to the counterclaim).
Subsequent to the filing of the plaintiffs' so-called answer to the counterclaim, the defendant filed a so-called "reply to answer to the counterclaim" (which in fact, if allowed by the Code of this state, should have been designated as a "rejoinder"). By this pleading defendant admitted all of the pleadings in the divorce case, including the allegation that the real property in question was not described in the original pleadings in the divorce suit until defendant's cross-complaint was amended by interlineation at the time of trial thereof.
The defendant contends that, having denied plaintiffs' title, it was incumbent upon plaintiffs to offer proof sufficient to sustain their title. However, the defendant, as shown above, admitted that the legal title had been in her husband and was transferred by him to one of plaintiffs' predecessors in title and through them to the plaintiffs. Having admitted the existence of the legal title in the plaintiffs, the burden of showing a superior right and title to the property rested with the defendant, and if her pleadings fail to show such lawful right, she cannot complain. Durkin v. *296 Ward, 66 Or 335, 133 P 345; 44 Am Jur 68, Quieting Title, § 83.
1. The defendant also contends that by reason of her advancing, at the request of her husband, some funds which were used in the purchase of the real property, and the husband having later "fraudulently transferred" this property, a resulting trust was created therein for her benefit. The allegation upon which the defendant relies reads as follows:
This court is committed to the proposition "that, where the purchase price is furnished by the wife and title to the property taken in the name of the husband, a resulting trust is presumed in favor of the wife." Rhodes v. Peery, 142 Or 165, 173, 19 P2d 418. The plaintiffs contend that this does not describe "an aliquot share or specific portion" of the property or that payment has been made out of "commingled or indistinguishable" trust funds. However, the pleading was not attacked either by demurrer or by a request that it be made more specific, definite and certain. So whether or not a trust in the property did in fact exist is a question to be determined by the trial court from the facts disclosed upon a trial of this matter.
The defendant also contends that the trial court was in error because the transfer of the real property *297 by defendant's husband to one Morris Bailey was made pending the divorce case for the purpose of defrauding her and was accepted by the grantee with knowledge of that purpose. The pleadings of the divorce suit (admitted by all parties) show that at the commencement of the suit the defendant was asking solely for a money judgment, and if any fraud was committed upon her it would be the prevention of the enforcement of such money judgment as she might receive by way of the decree. However, no money as alimony in gross was recovered in a judgment by her, and in such a situation the cases of Griffith v. Griffith, 74 Or 225, 145 P 270; Weber v. Rothchild, 15 Or 385, 15 P 650; and Barrett v. Barrett, 5 Or 411, are not applicable.
2. We need not determine at this time whether or not the doctrine of lis pendens is applicable in divorce cases [see 166 ALR 406] as we are of the opinion that if the doctrine is to apply the better rule requires that it is incumbent upon a party to fully describe in a pleading the real property claimed and request that the property, or an interest therein, be set apart to the claimant.
There is also another issue of fact raised by the pleadings in paragraph IV of defendant's affirmative answer which reads as follows:
This allegation in effect charges that Hugh Rae Hatch was the owner of the real property on March 31, 1952, and that his interest therein, if any, was by the decree of the court transferred to the defendant. Therefore, *298 if the plaintiffs are in fact the holders of only the legal title, and the equitable title rested in Hugh Rae Hatch at the time of the divorce decree, the defendant by the decree became the owner of that equitable interest.
The plaintiffs contend, however, that the decree of the divorce court was void by reason of the fact that no notice was given to Hugh Rae Hatch, the plaintiff in the divorce suit, of the proposed amendment as allowed by the court.
3, 4. While it is true that divorce suits are commenced in a court of general jurisdiction, a circuit court when acting in such matters is "exercising a special power conferred upon it by statute, and not according to the course of the common law", and is "a court of special and inferior jurisdiction, such jurisdiction being limited by the terms of the statute conferring the power. Northcut v. Lemery, 8 Or 316, 322". Garner v. Garner, 182 Or 549, 555, 189 P2d 397. When, however, the necessary jurisdictional facts are established, the force and effect of such a judgment is that of a valid judgment established in a court of general jurisdiction. 49 CJS 851, Judgments § 428; Steiwer v. Steiwer, 112 Or 485, 230 P 359; Shaveland v. Shaveland, 112 Or 173, 228 P 1090.
5. Generally, the existing elements of a court's jurisdiction are, (1) that the court has been granted the authority to exercise its powers in relation to the nature of the relief sought, (2) that the proper parties are, in contemplation of law, present in court, and (3) that if a particular thing is to be effected by the court's action, this thing must be within the territorial limits of the court. Dippold v. Cathlamet Timber Co., 98 Or 183, 189, 193 P 909.
*299 It must be conceded that the circuit court of Jackson county was granted the power to hear and determine the matter of a change in the marital status of Hugh Rae Hatch and Eva M. Hatch, the defendant in the case before us, and as incidental thereto, to provide a money judgment for the support of the defendant (§ 9-914, OCLA, as amended by Oregon Laws 1947, ch 228), and, also, to provide for a change of interest in the real property of the party in fault (§ 9-912, OCLA as amended by Oregon Laws 1947, ch 557). The pleadings show that both Hugh Rae Hatch and the defendant herein personally appeared in the divorce suit, and that the property involved by the decree was in Jackson county, Oregon; thus all of the necessary jurisdictional facts appear. The contention of the plaintiffs then resolves itself into whether or not the failure to give notice of the proposed amendment to the other party before the amendment was made in the divorce suit is jurisdictional so that that portion of the decree is void not merely voidable. Section 1-1006, OCLA, reads as follows:
and § 9-107, OCLA, provides that this statute shall be applicable to suits in equity.
*300 6. From the above it is seen that the matter of allowing amendments and the terms upon which they may be proper, before submission of the cause, insofar as the amendment "does not substantially change the cause of action or defense", rests in the sound discretion of the trial court, and it is only upon an abuse of this discretion that this court will reverse. Klingbeck v. Mendiola, 138 Or 234, 6 P2d 237; Filkins v. Portland Lumber Co., 71 Or 249, 251, 142 P 578.
7. It is unquestionably an abuse of discretion for a court to permit a material amendment without notice to and in the absence of an adverse party. "It can hardly be said that a material amendment of a pleading, made in the absence of an adverse party and without notice to him, would be in furtherance of justice." Avery v. Jayhawker Gasoline Co., 101 Okla 286, 225 P 544, 546. And the abuses of discretion of the trial court, if it should be considered such under the facts as set forth in the pleadings in this case, could be corrected only in a direct proceeding on appeal. Ulrich v. Lincoln Realty Co., 175 Or 296, 304, 152 P2d 255; Ralston v. Stone et al., 113 Or 506, 519, 232 P 631.
The plaintiffs herein were not parties to the divorce suit, and they could not be injuriously affected by the judgment in that case, it being their contention that prior to the decree being entered therein Hugh Rae Hatch had parted with all of his right, title and interest in and to the real property in question. The only party affected would be Hugh Rae Hatch, if, as the answer alleges, he is in fact still the owner of an interest in the real property. Ulrich v. Lincoln Realty Co., supra.
Hugh Rae Hatch was cognizant of the fact that he had commenced a divorce proceeding in the circuit *301 court to which an answer and cross complaint had been filed alleging that he was the owner of real property in Jackson county, Oregon; that the trial of the issues would be heard on a day certain; and a duty was imposed upon him to keep apprised of this fact. 52 Am Jur 32, Trial, § 10. He also knew that the trial court had power to permit amendments at the time of the trial so that an inadequate description could be made more definite and certain. Justice LORD, speaking in Wright and Jones v. Edwards, 10 Or 298, 305, said:
The case of Henderson v. Henderson, 85 Cal App 2d 476, 193 P2d 135, appears to be very closely in point. This was a collateral attack on a decree in an annulment suit which awarded certain real property to the wife. The description of the real property in the complaint was as follows: "Equity in real and personal property, situated in Shasta County, California, and standing in the joint names of the plaintiff and defendant herein." It was urged that the judgment was void because all description of the real property was different from that in the complaint. The court said that the description was sufficient to enable an officer upon execution to identify it and sufficiently certain to give the court jurisdiction over it. The court continued:
See also Annotations, 111 ALR 1200.
Our decision in Mumper v. Matthes, 186 Or 357, 206 P2d 86, bears on the question. The case involves an administrator's sale in which the description of the land to be sold omitted the fourth boundary line and the description of the easterly boundary line was unintelligible, (p. 370). The sale was held to be void on collateral attack, but the opinion points out on page 370 that "No attempt was made to correct the error, either in the petition, the order for sale, the published notice of sale, or the order confirming the sale." The case is, therefore, distinguishable.
*303 Also, the evidence in the divorce case as disclosed by the pleadings in this suit shows that Hugh Rae Hatch owned but this one piece of property in Jackson county.
8. We are of the opinion, under the alleged and submitted circumstances as shown by the exhibits of the proceedings in the divorce case, that if the divorce court abused its discretion in the matter of allowing the amendment, the judgment was at most voidable and not void.
In passing, we feel that we should note that the answer of the defendant alleges a judgment of temporary suit money and attorney's fees recovered and unpaid in the divorce suit prior to the transfer of title of the real property by Hugh Rae Hatch, which allegation is admitted by the plaintiffs. This judgment became a lien upon the real property by reason of subd (4), § 9-913, OCLA, (now subd (5) as set out and amended by ch 142 § 1, Oregon Laws 1945), passed subsequent to our decision in the case of State ex rel. v. Tolls, 160 Or 217, 85 P2d 366, 119 ALR 1370.
The above cause will be reversed and remanded that the trial court may determine the interest, if any, of the defendant in the real property arising out of any interest Hugh Rae Hatch may have had therein on the 31st day of March, 1952, and for such other proceedings as are not inconsistent with this opinion.
LATOURETTE, C.J., specially concurring.
The principal question involved on the appeal is the validity of the decree of divorce awarding defendant the real property involved.
It is a general rule that where a court has jurisdiction *304 of the subject matter and of the parties its judgment cannot be collaterally attacked. The reason for this rule is well stated in 31 Am Jur 177, Judgments, § 577:
In 49 CJS 815, Judgments, § 428, we find:
The above rule is adhered to in Shaveland v. Shaveland, 112 Or 173, 178, 228 P 1090; Travelers Ins. Co. v. *305 Staiger, 157 Or 143, 148, 69 P2d 1069; and Ulrich v. Lincoln Realty Co., 175 Or 296, 304, 153 P2d 255.
See Annotation, 111 ALR 1200; Mumper v. Matthes, 186 Or 357, 206 P2d 82.
In the case at bar the trial court in the divorce suit had jurisdiction of the parties and of the subject matter. The cause of suit fell within a class over which the court could rightfully exercise jurisdiction. The court had jurisdiction to award defendant a divorce and to award to her the real property in question. § 9-912, OCLA, as amended by Oregon Laws 1947, ch 557. Her answer alleged that her husband was possessed of real property in Jackson county, Oregon, and was attempting to dispose of the same. The prayer of her answer, inter alia, called for general relief. At the trial the defendant testified that her husband owned the real property specifically described and the decree of the court corresponded therewith. Whether or not her pleading was amended, it seems to me, is immaterial at this stage of the proceedings.
It is asserted that since the complaint did not specifically describe the real property the same was insufficient, which would not warrant the entering of the decree. We have held in several instances that failure of the complaint to specifically describe the real property renders void the judgment based thereon. These cases must be distinguished from the instant case because the questions there considered were raised in direct proceedings rather than collaterally.
In Altman v. School District, 35 Or 85, 56 P 291, and Horn v. United States Mining Co., 47 Or 124, 81 P 1009, we held that the sufficiency of the complaint cannot be collaterally attacked. Of course this would not be true if the defect were a jurisdictional defect.
*306 To the same effect is 1 Freeman on Judgments, 5th ed, 761, where the following language is employed.
*307 In arriving at a proper solution of this matter care must be taken in considering the cases to distinguish between collateral and direct attacks. Oftentimes, in a direct attack the courts have loosely and inadvertently used the words "void," "without authority," or "invalid" when the word "voidable" would have been more appropriate.
The cases cited in the dissenting opinion are distinguishable from the case at bar in that in the cases enumerated where a defective description in the complaint was voided, direct attacks on the decrees were employed. Of course, where a jurisdictional defective description is used, such as in the sale of property in an estate where the statute requires a description in the petition, the decree may be attacked collaterally.
BRAND, J., specially concurring.
Plaintiff instituted suit for divorce against his wife. The original answer of the defendant referred to "all of his [plaintiff's] belongings including the real and personal property * * * in which defendant herein had an interest * * *." It also alleged that "plaintiff is possessed of real and personal property in Jackson County." The plaintiff was thereby put on notice that his real property might be subjected to orders of the court. The only real property shown by the evidence to have belonged to the plaintiff in the divorce case was Lots 12 through 16, Block 7, Central Point, Jackson County, Oregon. At the trial of the divorce case the answer was amended to describe the real property as above set forth. In my opinion the trial court erred in entering a decree based upon the amendment which had not been served as required by OCLA, § 1-708. Under the circumstances of this particular case, *308 the error was not jurisdictional and the decree was not subject to collateral attack.
WARNER, J., dissenting.
I am compelled to dissent on the ground that the majority opinion avoids answering the most important issue advanced by this appeal. The opinion correctly states it as follows: "The plaintiffs contend * * * that the decree of the divorce court was void by reason of the fact that no notice was given to Hugh Rae Hatch, the plaintiff in the divorce suit, of the proposed amendment [i.e., to paragraph IV of Mrs. Hatch's cross complaint] as allowed by the court." A very important corollary thereto is whether or not such a decree is vulnerable to collateral attack. It requires clear answer if this appeal is to be correctly resolved.
Moreover, nothing is said in or solved by the majority opinion concerning the necessity or want of necessity of service of the amendment upon Mr. Hatch as a condition precedent to vesting the court with authority to make a decree predicated upon the new matter contained therein. To the contrary, the majority opinion detours the problem of service projected by § 1-708, OCLA (ORS 16.430) and rests its conclusion upon a premise not raised by either party and in a manner not decisive of the cardinal question before us. Instead, the majority rests its final conclusion upon a gratuitous holding in these words:
*309 I cannot and, I venture to say, no one will seriously challenge the right of the court in the Hatch suit to have authorized the amendment which it approved in that matter. Whether the court abused its discretion in so doing is not the issue determining the void or voidable character of the decree which subsequently followed. The majority opinion does not travel far enough. It pauses midway in its quest for the solution and rests its ultimate conclusion upon a relatively unimportant and indecisive matter.
Neither Mr. Hatch nor his counsel had notice of the challenged amendment nor an opportunity to traverse the new allegation, for immediately thereafter the court proceeded to hear the matter and on the same day the trial judge entered a decree of divorce in favor of Mrs. Hatch with the following provision:
The defendant in this matter relies upon that decree to support her claim of title in the property which is the subject of this suit.
My position is (1) that the so-called amendment to Mrs. Hatch's cross complaint is a nullity because of the failure to serve it upon her husband and, therefore, it did not supersede the original cross complaint; (2) that the cross complaint was devoid of any specific description of real property owned by Mr. Hatch and that as a result of this pleading status the court never acquired jurisdiction of the subject matter, i.e., the real property described in the decree; and (3) that such a *310 jurisdictional defect rendered the decree void and subject to collateral attack insofar as it attempted to decree an interest therein to Mrs. Hatch.
I shall consider these several matters in the order presented above.
Failure to follow the directions of § 1-708, OCLA, rendered the so-called amendment inoperative to supersede Mrs. Hatch's original pleading in cross complaint. That section reads:
That statute is plain and unambiguous. It places a premium upon notice. Its effect is to toll further action on the amended pleading until the record reveals that such service was accomplished or was waived. It is mandatory in character and no amendment, even though authorized, becomes efficient or effective unless it is apparent that there has been a complete and satisfactory compliance with § 1-708. If the record is silent in this respect, then the tendered amendment, even though filed, does not operate to supersede the pleading it is designed to amend and is functus officio, conferring no new authority on the court and leaving the party who offers it dependent upon his original pleading for relief.
*311 In Cram v. Tippery, 175 Or 575, 584, 155 P2d 558, we held, under authority of § 1-708, that where an amended complaint was filed but not served on all the parties defendant, the court was without authority to render judgment against any unserved defendant. Also see Alery v. Alery, Jr., et ux., 193 Or 336, 341, 238 P2d 771. I make no claim for the cases cited beyond the fact that they are authority for the proposition that an amendment of a pleading without service upon the adverse party is, under § 1-708, ineffective against that party and does not supersede the original pleading sought to be amended and that the pleader's relief against such adversary is, by reason thereof, limited in scope and extent to the allegations of the original pleading.
The amendment was tendered and authorized on the day set for trial (March 31, 1952). Mrs. Hatch was in court in person and with counsel. The record indicates no service of the amendment upon Mr. Hatch, as required by § 1-708, nor waiver of such service. No contention to the contrary is made. It follows that Mrs. Hatch's tendered amendment was inoperative and the only controlling pleading was her original cross complaint.
Our next point of interest is the scope of the original cross complaint.
I pause to note that jurisdiction of the subject matter must appear from the pleadings and does not depend upon the existence of a suitable cause of action or the evidence subsequently adduced. E. Henry Wemme Co. v. Selling et al., 123 Or 406, 417, 262 P 833; Dippold v. Cathlamet Timber Co., 98 Or 183, 189, 190, 193 P 909, and authorities there cited; Eagle Cliff Fishing Co. v. McGowan, 70 Or 1, 7, 137 P 766. It is true, as *312 stated in the majority opinion, that it is essential to the jurisdiction that the res against which relief is sought must be within the territorial limits of the court; but that fact alone does not vest the court with power to accord any specific relief with reference thereto, unless the res is subjected by constructive seizure to the exercise of the court's power by being properly impleaded.
A divorce suit, insofar as it involves the disposition of any interest in real property, is in the nature of a proceeding in rem. In Ross v. Ross et al., 21 Or 9, 13, 26 P 1007, consideration was given to the sufficiency of the pleadings in a divorce suit which failed to describe the real property of the adverse party, and the court there said:
Concerning the necessity for a seizure of the res as a condition precedent to the exercise of the court's power with reference thereto, we find in Frederick v. Douglas Co. et al., 176 Or 54, 65, 155 P2d 925, this statement by Mr. Justice BRAND:
In 3 Bancroft, Code Pleading, 2205, § 1353, under the caption of "Divorce and Separation", it is said:
To bring the res, that is, the real property, within the jurisdiction of the court in a divorce suit, this court has long ago adopted and since followed an exacting rule of pleading. We find it well and clearly expounded in Senkler v. Berry, 52 Or 212, 215, 96 P 1070, in these words:
Also see Schafer v. Schafer, 122 Or 620, 639, 260 P 206, 59 ALR 707; Perkins v. Perkins, 72 Or 302, 306, 143 P 995; Ross v. Ross et al., supra, at page 11; Hall v. Hall, 9 Or 452, 456; Bamford v. Bamford, 4 Or 30, 35.
From the foregoing we learn that the pleading must not only specifically describe the real property in which title is sought "with as great certainty as is required in ordinary conveyances" (Senkler v. Berry, supra) but the pleader must allege that the party to be divested is the owner thereof. More is required of the pleader, however, than a sufficient legal description. To give the pleading the quality of completeness there must be a claim for an investment of title in the pleader by a proper allegation or prayer. In short, an averment with reference to the real property, to be effective as a basis for the acquisition of title, must have as its pleaded objective a prospective ownership therein; otherwise, the pleading of the description is ineffectual to lay the basis for a disposition of the title by decree. Perkins v. Perkins, supra, at page 306; Hall v. Hall, supra, at page 456.
With these long established rules before us, let us now examine the contents of the original cross complaint *315 in Hatch v. Hatch. The nearest approach to the subject of real property is in paragraph XI reading:
There is no claim or prayer for any interest therein and, of course, reference to any real property possessed or owned by Mr. Hatch is in the baldest generality. It is plainly patent that the purpose of this allegation was to lay a foundation for the only relief prayed for by Mrs. Hatch, aside from a decree of divorce, and that is for "judgment against the plaintiff for the sum of $5,000.00 in lieu of alimony".
Even had the amendment been properly made, it would not have availed the pleader of any advantage which would have warranted a decree of an interest in any particularly described real property, for the amendment as tendered and attempted to be made effectual by interlineation did not amend paragraph XI above quoted but was an addition to a subparagraph of paragraph IV (the paragraph of the cross complaint devoted exclusively to a recital of the various items of alleged marital misconduct, made in support of the charge of cruel and inhuman treatment). I illustrate by setting out paragraph IV as it appeared after the tendered amendment:
The italicized language of the foregoing quotation represents the matter included by interlineation. The significant thing is that neither before nor after the abortive amendment did the cross complaint by allegation or prayer make a claim or ask for a decree of any interest in the subject real property, a further fatal defect in pleading matters of this kind. Perkins v. Perkins, supra; Hall v. Hall, supra.
It has been earnestly suggested (though not reflected in the majority opinion) that that part of paragraph XI reading "That * * * the plaintiff is possessed of real and personal property in Jackson County, Oregon" is sufficient to vest the court with jurisdiction over the subject matter. Whatever may be the rule in other proceedings relating to the disposition of an interest in real property, it is clear that in a divorce suit in Oregon such an allegation is palpably insufficient to give the court power to make any disposition of title to such real property. Here the rule is unusually strict, as manifested by a study of Perkins v. Perkins, supra.
In the Perkins case the defendant wife, in a cross complaint to a divorce suit instituted by her husband, as shown by the record here, specifically described certain real property owned by the husband in these words: "* * * Six Hundred (600) acres of land of first class farm and grazing land, described as follows to-wit * * * [then follows a particular description *317 to parcels totaling 540 acres as situated in Coos county, Oregon]." (Italics mine.) Thereafter, in granting a decree of divorce to the wife, the court vested her with an undivided one-third interest in and to the 540 acres specifically described in her cross complaint and also added a parcel of 80 acres situated in a different section of the same township and range wherein the 540 acres were situated. On appeal this court held, with reference to the additional 80 acres:
It will be observed that in the Perkins case the rejected description was far more complete than found in the cross complaint in Hatch v. Hatch.
Tested by the foregoing rules the original cross complaint, by reason of the absence of an adequate description of the instant real property, conferred no jurisdiction of the property upon the court and, therefore, the resultant decree in Hatch v. Hatch transferred no title to Mrs. Hatch.
*318 With the foregoing results in mind, I now approach the paramount matter for consideration: Is a decree which makes a disposition of an interest in real property, not warranted by the pleadings, vulnerable to a collateral attack such as is here made against the decree in Hatch v. Hatch?
It is a well established principle of law that a decree or judgment on a matter outside an issue raised by the pleadings is a nullity and is nowhere entitled to the least respect as a judicial sentence. McLean v. Porter, 148 Or 262, 271, 35 P2d 664; State ex rel. Dean v. Dean, 136 Or 694, 697, 300 P 1027, 86 ALR 79; May v. Roberts, 133 Or 643, 657, 286 P 546; Reed v. Hollister, 106 Or 407, 415, 212 P 367.
This court has heretofore held in divorce suits that an excessive grant by decree of an interest in real property not supported by proper pleading is jurisdictional and beyond the court's powers. This being so, it is subject to collateral attack. Note the language employed by this court in Perkins v. Perkins, supra: "* * * the court has no power to grant him any part of such property * * *." (Italics mine.)
This court has defined a want of jurisdiction as a loss of power to act. Marsters v. Ashton, 165 Or 507, 512, 107 P2d 981. The court, speaking through Mr. Justice RAND in Reed v. Hollister, supra, said, at page 414:
Also see State ex rel. v. Crawford, 159 Or 377, 388, 80 P2d 873; Walker v. Fireman's Fund Ins. Co., 122 Or 179, 191, 257 P 701; Harney Valley Irr. Dist. v. Bolton, 109 Or 486, 491, 221 P 171; Ralston v. Bennett, 93 Or 519, 523, 183 P 766; In re McCormick's Estate, 72 Or 608, 616, 143 P 915, 144 P 425.
Northwestern Clearance Co. v. Jennings, 106 Or 291, 209 P 875, 210 P 884, was a suit involving a collateral attack upon a previously rendered judgment wherein the court cited with approval Sache v. Wallace, 101 Minn 169, 112 NW 386, 118 Am St Rep 612, 11 Ann Cas 348, 11 LRA NS 803, as follows:
Later, at page 310 this court holds:
I submit that if the court had no power to act judicially, it is equivalent to a want of jurisdiction rendering such a decree subject to collateral attack. 49 CJS 822, Judgments § 421.
*320 The foregoing conclusions and definitions find support in the following statement from 1 Freeman, Judgments 5th ed, 733, § 354:
For the foregoing reasons the decree in Hatch v. Hatch is insufficient to support a claim of fee simple ownership in Mrs. Hatch and the decree in the instant suit should be affirmed insofar as it decrees the plaintiffs Burnett to be the owners in fee simple of the subject property but modified (for the causes assigned in the majority opinion) by subjecting the same to the lien of that certain judgment obtained by Mrs. Hatch in the divorce suit dated September 15, 1945, for $200 support money and the further sum of $100 as attorney's fees. | e38a09b10e6c6d4739a632dd58083cd5102751f12bd290d220deed455eb6e3e6 | 1954-01-27T00:00:00Z |
9bcf4ca0-7856-4496-a7b3-ed19458e17f2 | Freeman v. Gladden | 236 Or. 137, 387 P.2d 360 | null | oregon | Oregon Supreme Court | Affirmed December 11, 1963.
Philip A. Levin, Portland, argued the cause for appellant. With him on the brief was Carl R. Neil, Portland.
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.
*138 PER CURIAM.
This is an appeal from an order sustaining the state's demurrer to plaintiff's petition for post-conviction relief under ORS 138.510 to 138.680.
Petitioner prayed for a new trial on the ground that she had been deprived of her constitutional rights under both the United States and Oregon Constitutions. The lower court sustained the demurrer to the petition upon the basis that the grounds for relief set forth in the petition had been asserted or could reasonably have been asserted in the direct appeal from the conviction. State v. Freeman, 232 Or 267, 374 P2d 453 (1962), certiorari denied 373 US 919, 83 S Ct 1310, 10 L Ed2d 418, rehearing denied, 374 US 858, 83 S Ct 1894, 10 L Ed2d 1083 (1963).
ORS 138.550 provides in part as follows:
Upon appeal from the judgment of conviction the defendant Freeman asserted that she "failed to receive a fair trial and was denied due process of law in that defendant was intensely interrogated by the police and the district attorney prior to the time she was taken before a magistrate in the state of Oregon and before appointment of counsel on her behalf." More specifically *139 it was asserted that "she requested the appointment of counsel to safeguard her interests but no appointment was made until after the police had exhausted every avenue of interrogation open to them."
The post-conviction petition employs essentially these same grounds except that the petition has marshalled additional evidence to support each of the grounds previously asserted. Thus petitioner recites more specifically how police coercion was employed and how petitioner's request for counsel was denied.
Petitioner confuses new or additional evidence with new or additional grounds in attempting to exclude the application of ORS 138.550 (2). That section was intended to state the principle of res judicata in post-conviction appeals. The section would be rendered practically meaningless if a defendant could circumvent its application simply by marshalling additional evidence to support a ground already asserted in appealing from the judgment of conviction.
Judgment affirmed. | 6f72c0a83d51ceb2e8ac45d2d701efda2f47cf0668b85bb4545be127284695c5 | 1963-12-11T00:00:00Z |
3e861b0b-9d11-410f-b769-b0e3fc08927e | Dressler v. Isaacs | 236 Or. 269, 387 P.2d 364 | null | oregon | Oregon Supreme Court | Appeal dismissed December 11, 1963.
Petition for rehearing denied January 14, 1964.
Jesse F. Dressler argued the cause in propria persona and submitted a brief.
No appearance for respondents.
Before ROSSMAN, Presiding Justice, and SLOAN, GOODWIN and LUSK, Justices.
APPEAL DISMISSED.
ROSSMAN, J.
This is an attempted appeal by Jesse F. Dressler from an instrument which is entitled "Order Denying Motion to Reopen Case." Mr. Dressler is not an attorney and appears in his lay capacity. No other person whose name is entered in the record as a party to the proceeding has appeared. The motion just mentioned, *270 which was denied by the Order Denying Motion to Reopen Case, purported to have been made on behalf of four individuals, each named Dressler. Jesse F. Dressler was one of the four. The motion was signed by Jesse F. Dressler.
The controversy out of which the purported appeal arose had its litigious origin April 18, 1955, when the four Dresslers filed a suit in the Circuit Court for Jackson County praying for the establishment of an easement over a tract of land owned by the defendants which lay adjacent to the tract owned by the Dresslers. The facts and issue of that suit are set forth in Dressler v. Isaacs, 217 Or 586, 343 P2d 714. The defendants in that suit and in this proceeding were and are Roby L. Isaacs and his wife and Nate H. Smith and his wife. December 6, 1956, after trial, a decree was entered in favor of the defendants. The decree thus entered was challenged by an appeal. In maintaining that suit in the circuit court and upon appeal the Dresslers were represented by able counsel. The decision upon appeal, Dressler v. Isaacs, supra, was announced September 9, 1959, and affirmed the decree of the circuit court. It held that the Dresslers were not entitled to the claimed easement. Mr. Dressler sought, by filing his present motion, to reopen that case.
It is seen from the foregoing that this is not an appeal from an order granting a new trial and vacating a judgment but an attempted appeal from an "Order Denying Motion to Reopen Case." We think it is very clear that this appeal cannot be maintained. ORS 19.010 (2) (d).
Appeal dismissed. | 7adec6b45c3c407a99e32c3f67265773cc87b31d29f71cfbefe87a1e46f75bc8 | 1963-12-11T00:00:00Z |
add703cb-93bb-4cd1-8ff5-5b9383bd6492 | Rosa v. Briggs | 200 Or. 450, 266 P.2d 427 | null | oregon | Oregon Supreme Court | Affirmed February 10, 1954.
*451 Howard K. Beebe, of Portland, argued the cause for appellant. With him on the brief were Maguire, Shields, Morrison & Bailey, of Portland.
Burl Green argued the cause for respondent. On the brief were Green, Richardson & Green, and Dean N. Alexander, all of Portland.
AFFIRMED.
TOOZE, J.
This is an action to recover damages for personal injuries allegedly caused by the negligent operation of two motor vehicles, brought by Arthur Rosa, as plaintiff, against Herbert G. Briggs and J.O. Lafferty, as defendants. The case was tried to a jury and resulted in a verdict being returned in favor of the defendant Lafferty against the plaintiff. A verdict also was returned in favor of plaintiff against the defendant Briggs for the sum of $4,000. Judgments were entered accordingly. Defendant Briggs appeals.
Defendant's sole assignment of error in this court is that the trial court erred in overruling his motion for a directed verdict, which motion was as follows:
*452 Section 115-1001, OCLA (ORS 30.110), generally referred to as "the guest statute", provides:
The accident out of which this litigation arose occurred on August 13, 1948, at the intersection of S.W. Barbur boulevard and S.W. 19th avenue, in Multnomah county, Oregon. S.W. Barbur boulevard is an arterial four-lane highway, running in a general northerly and southerly direction, and is intersected by S.W. 19th avenue, which runs in a general easterly and westerly direction. Travel at the intersection is controlled to some extent by an electric yellow caution light.
The automobile in which plaintiff was riding at the time of the accident (in the back seat thereof) was owned and being operated by the defendant Briggs. This car was proceeding southerly along S.W. Barbur boulevard. The defendant Lafferty was operating his car in a general westerly direction upon and along S.W. 19th avenue, and was crossing the intersection with S.W. Barbur boulevard. The Briggs car struck the Lafferty car broadside, and, as the result of the collision, plaintiff suffered the personal injuries of which he complains.
Prior to the accident, both plaintiff and defendant Briggs were employed in the construction of a private *453 dwelling located near S.W. 58th avenue and Taylor's Ferry road, in Multnomah county. Plaintiff had been employed on the work for approximately three weeks, and defendant Briggs, for approximately one week. One Henry L. Rocco was foreman on the job and had employed Briggs. At the time of the accident, Rocco also was riding in the Briggs automobile, and in the front seat thereof. Briggs, Rocco, and plaintiff were on their way to work at the time of the accident.
At the time in question, plaintiff and Rocco lived at the Columbia hotel, located at S.W. Front avenue and S.W. Columbia street in Portland, Oregon; defendant Briggs lived at 2027 S.W. Second avenue (between S.W. Grant and S.W. Lincoln streets) in Portland.
On the morning of the accident, as well as for a few days prior thereto, the defendant Briggs drove his car from his home to the Columbia hotel for the purpose of transporting Rocco and plaintiff to their mutual place of employment. Over a period of six or seven days immediately prior to the day of the accident, defendant Briggs had been regularly transporting plaintiff and Rocco back and forth between the scene of their employment and the Columbia hotel each day they worked.
Prior to the commencement of this transportation, plaintiff and Briggs had been entire strangers, but Briggs had known Rocco over a period of a year. When Rocco employed Briggs on the job he asked Briggs if he might ride with him to and from work. Briggs consented. Thereupon, Rocco asked for similar transportation for plaintiff, to which Briggs agreed.
In order to furnish transportation for plaintiff and Rocco, it was necessary each morning for Briggs to drive approximately 12 city blocks north from his *454 home to the Columbia hotel and then to retrace his steps south and on to their place of employment. He was required to repeat the drive each evening upon returning to Portland. Therefore, this arrangement required Briggs to drive 48 blocks out of his way each day in order to provide the transportation in question.
Payday on the job was either on Monday or Tuesday, and on either Monday or Tuesday, August 9th or 10th, plaintiff was paid. At that time he had ridden four times with Briggs. He paid Briggs $2 in cash on that day, stating to Briggs that it was for "travel expense" or "transportation on the job". Briggs accepted the money. Thereafter, no change was made in the transportation arrangements, and prior to the accident, plaintiff had ridden with Briggs on one or two additional days the only days he worked.
We have not attempted to review all the facts in the case, but the foregoing statement is sufficient for our purposes.
Plaintiff in his complaint alleged two causes of action against defendant Briggs. In one he charged Briggs with gross negligence within the meaning of the guest statute; in the other, he charged ordinary negligence.
The charge of ordinary negligence was based upon the theory and further allegations of the complaint that plaintiff was paying for his transportation and, hence, was not subject to the restrictions of the guest statute.
The trial court took from the jury's consideration the matter of gross negligence, upon the ground that there was insufficient evidence to submit that question. The trial court erred in this action, and were it necessary to reverse this case, we would be compelled *455 to remand it for a new trial upon the question of gross negligence.
However, the issue before us now for determination is whether there is sufficient substantial evidence in the record from which a jury might reasonably infer that there was an understanding between plaintiff and Briggs that plaintiff should pay for his transportation.
1. The motion for a directed verdict presents the question as to whether there is any substantial evidence to support the verdict and judgment. When the sufficiency of the evidence is thus challenged, the court must view the record in the light most favorable to the plaintiff. Moreover, plaintiff is entitled to the benefit of every reasonable inference that can be drawn from the evidence in his favor. Glascock v. Anderson, 198 Or 499, 257 P2d 617, 619; Willoughby v. Driscoll, 168 Or 187, 191, 120 P2d 768, 121 P2d 917.
2. Upon the trial defendant seemed to be of the opinion that unless plaintiff could prove an express agreement between himself and Briggs to pay for the transportation, an agreement made prior to the time the transportation commenced, he was not entitled to recover. This contention finds support in Smith v. LaFlar, 137 Or 230, 2 P2d 18, but that decision was expressly overruled in Luebke v. Hawthorne et al., 183 Or 362, 367, 192 P2d 990. It also was impliedly overruled in Albrecht v. Safeway Stores, Inc., 159 Or 331, 340, 80 P2d 62. In the Albrecht case, supra, at page 340, we said:
Defendant invites attention to a number of decisions from other jurisdictions in which the broad principle *456 is laid down that where the evidence shows only a voluntary contribution to the host toward the expenses normally incurred in the operation of the automobile, that does not necessarily change the guest-host relationship, and especially so when the host has already commenced furnishing transportation gratuitously as a gesture of hospitality.
In Rogers v. Vreeland, 16 Cal App2d 364, 60 P2d 585, 587, cited by defendant, the court, in construing the guest statute, said:
Defendant in his brief also quotes from Potter v. Juarez, 189 Wash 476, 66 P2d 290, 292, the following:
Our own decisions in which we have construed the "guest statute" are not out of harmony with the above statements of the California and Washington *457 courts. We deem it unnecessary to discuss all the cases cited by defendant. When the facts in each of them are considered, there is little, if anything, said in the decisions that is contrary to the conclusions we reach in this case. In some instances, it was held to be a jury question whether or not the passenger was a "guest" within the meaning of the statute, while in others, the status of the plaintiff passenger was decided as a matter of law. In the latter type of cases, the relationship between the driver and passenger and the purposes of the transportation were usually social in nature. There is no fixed rule by which the question can be determined in every case. Each case must be decided upon its own peculiar facts and circumstances, guided only by certain elementary general rules upon which most courts agree. In addition to the two cases mentioned above, defendant cited and quoted from in some instances the following decisions: McCann v. Hoffman, 9 Cal2d 279, 62 P2d 401, 70 P2d 909; Pilcher v. Erny, 155 Kan 257, 124 P2d 461; Everett v. Burg, 301 Mich 734, 4 NW2d 63, 146 ALR 639; Dutcher v. Rees, 331 Mich 215, 49 NW2d 146; Yarnall v. Gass, 240 Mo App 451, 217 SW2d 283; Voelkl v. Latin, 58 Ohio App 245, 16 NE2d 519; Hasbrook v. Wingate, 152 Ohio St 50, 87 NE2d 87; Eubanks v. Kielsmeier, 171 Wash 484, 18 P2d 48.
In another Washington decision facts quite similar to those of the case at bar were considered: Parrish v. Ash, 32 Wash2d 637, 203 P2d 330, 338. The court said:
The court further stated:
And upon the question whether proof of an enforceable contract to pay for the transportation was a condition precedent to plaintiff's right of recovery as a passenger, the Washington court announced the same rule adopted by this court in Albrecht v. Safeway Stores, Inc., supra. In discussing an instruction to the jury which, in effect, stated that such proof was not necessary, the Washington court said:
The court affirmed the judgment in favor of plaintiff.
*459 In Albrecht v. Safeway Stores, Inc., supra, at page 337, we said:
And in Luebke v. Hawthorne et al., supra, at page 366, this court commented:
In Melcher v. Adams, 174 Or 75, 82, 146 P2d 354, Mr. Justice BAILEY, in discussing a decision of the Washington Supreme Court wherein the guest statute was construed, stated as follows:
*460 In the instant case the able and distinguished trial judge (since deceased), submitted to the jury the question whether, under all the facts and circumstances in evidence, plaintiff was paying for his transportation within the meaning of the guest statute. The court instructed the jury as follows:
3. Under the facts and circumstances of this case, viewed in the light most favorable to plaintiff, we are of the opinion that the question of plaintiff's status was properly submitted as one of fact for the jury to determine. Its verdict resolved that question in favor of the plaintiff.
No social relationship existed between plaintiff and Briggs, and the transportation in question was not in any manner associated with a social, as distinguished from a business, venture. Defendant, a stranger, undertook to and did drive an extra 48 city blocks each day in order to furnish transportation for plaintiff and Rocco to and from their place of employment. *462 It is not altogether reasonable to suppose that Briggs would do this gratuitously for plaintiff, or as a mere favor to a person to whom he owed no obligation, social or otherwise. Under the facts of this case Rocco, the friend of Briggs, and also the foreman on the job who employed Briggs, occupied a somewhat different position than that of plaintiff, and yet, as the evidence indicates, on prior jobs when Rocco had ridden with Briggs, he had paid Briggs for his transportation. A jury might well find that the amount paid by plaintiff to Briggs was more than sufficient to cover the entire expense of gas and oil consumed on the trip each day, the round trip not exceeding 12 miles. Upon the first payday after this transportation commenced (to that time, plaintiff had ridden on four separate days), plaintiff paid defendant the sum of $2 for "traveling expenses" or "transportation on the job", and defendant accepted that sum therefor. From all the facts and circumstances in evidence, it is manifest that a jury might reasonably infer that an understanding existed between plaintiff and Briggs that plaintiff was to pay for his transportation at the rate of 50 cents per day, and that the transportation furnished on the days following the first payment by plaintiff (on payday), including the day of the accident, "was motivated by an expectation of a similar payment for the transportation" so provided, payment to be made therefor on the next payday.
The judgment is affirmed. | 941841072b156d9f31ec80e41bdc4578b8bf107b1ae7a0d0be526d21616f90f7 | 1954-02-10T00:00:00Z |
0a5bcd6b-941f-47b8-a739-70239dcca41c | Wallowa Valley Stages v. OREGONIAN PUBLISHING COMPANY | 235 Or. 594, 386 P.2d 430 | null | oregon | Oregon Supreme Court | Affirmed November 6, 1963.
*595 Carl G. Helm, Jr., La Grande, argued the cause for appellant. With him on the briefs were Helm & Neely, La Grande.
R. Thomas Gooding, La Grande, argued the cause for respondent. 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.
The Oregonian Publishing Company appeals from a judgment upon a jury verdict for the plaintiff.
The question is whether The Oregonian's legal relationship with its codefendant Badgett was such that The Oregonian should be liable on a theory of respondeat superior for damages resulting from a collision between Badgett's automobile and the plaintiff's bus. The jury found Badgett negligent. He has not appealed.
At the time of the collision Badgett was on his way from Enterprise to obtain newspapers from a distribution point The Oregonian maintained in La Grande. It was Badgett's duty, in order to perform his contract with The Oregonian, to drop bundles of newspapers at designated points along State Highway 82. He had other duties, which included collecting accounts, hiring and firing delivery boys, and soliciting new subscribers. His Oregonian route did not occupy all his working hours; he also distributed a Walla Walla newspaper and certain magazines. Badgett furnished his own automobile and paid the expenses thereof.
The written contract between The Oregonian and *596 Badgett is called an "Independent Dealer's Franchise." The Oregonian relies, inter alia, upon the contract to insulate it from liability arising from any negligent conduct by Badgett while performing his duties.[1] Similar contracts have been deemed significant, although usually not controlling, elsewhere. See, e.g., Batt v. San Diego Sun Pub. Co., Ltd., 21 Cal App2d 429, 69 P2d 216 (1937); Bohanon v. James McClatchy Publ. Co., 16 Cal App2d 188, 60 P2d 510 (1936); Gall v. Detroit Journal Co., 191 Mich 405, 158 NW 36, 19 ALR 1164 (1916); Bass v. Kansas City Journal Post Co., 347 Mo 681, 148 SW2d 548 (1941). See also cases collected in Annotation, 53 ALR2d 183, 186 (1957).
*597 In addition to considering any contractual arrangements, courts also look to the actual conduct of the business. See, e.g., Great American Indemnity Co. v. Fleniken, 134 F2d 208 (5th Cir), cert. den. 319 US 753, 63 S Ct 1167, 87 L Ed 1706 (1943). Where conduct of the parties is inconsistent with their written contract which purports to insulate the employer from liability, the conduct controls. Sanford v. Goodridge, 234 Iowa 1036, 13 NW2d 40 (1944).
In cases decided under statutory schemes, newspaper circulation personnel are sometimes treated as employes, at least for such purposes as social security, workmen's compensation, and collective bargaining. In cases brought under such legislation, the purposes behind the particular statute are given primary consideration in determining whether one engaged in work for another should be treated as an employe or an independent contractor. See, e.g., Bowser v. State Indus. Accident Comm., 182 Or 42, 185 P2d 891 (1947); Journal Pub. Co. v. State U.C. Com., 175 Or 627, 155 P2d 570 (1945); Board v. Hearst Publications, 322 US 111, 125, 126, 64 S Ct 851, 88 L Ed 1170 (1944); Wolfe, Determination of Employer-Employee Relationships in Social Legislation, 41 Colum L Rev 1015 (1941).
In such cases, the tests of "control" or "right to control" are deemed to be of only slight, if any, relevance. But see Nordling v. Johnston, 205 Or 315, 283 P2d 994, 287 P2d 420, 48 ALR2d 1369 (1955), noted 37 Or L Rev 88 (1957), where the "right to interfere" was enough to make the question one for the jury. Where legislation is concerned, persons engaged in a given activity generally are deemed to be employes whenever it is found to be consistent with legislative objectives that they be so regarded. Likewise, they may be *598 treated as independent contractors whenever legislative or other policy considerations make that choice the more reasonable in a given case.
In tort cases, however, the right of the employer to control the workman is the basis most commonly advanced for imposing liability upon the employer. A total lack of control, especially when accompanied by other manifestations of independence, tends to militate against liability. Where the employer has no right to control his actions, the actor is usually deemed to be an independent contractor. See Clark v. Shea et al, 130 Or 195, 279 P 539 (1929); 2 Harper & James, Torts 1366, §§ 26.3-26.11 (1956); and cases collected in the Annotation, 53 ALR2d 183 (1957).
Many of the tests used by courts in determining whether a particular person is a servant or an independent contractor have been distilled into the definition of a servant found in Restatement, 1 Agency2d § 220 at 485-486 (1958):
If the foregoing considerations are used in the trial of jury cases, the trial court ultimately has to tell the jurors, at least in a general way, how to apply to the case at hand their affirmative or negative answers to the Restatement tests. They must arrive at a general verdict based upon their decision that the actor in a given case was, or was not, a servant. Thus, the trial courts understandably rely strongly upon the element of control, or the right to control, and in their instructions relate to the general concept of control such other suggestions, like those found in § 220 of the Restatement, as they may see fit to use. Frequently the summarizing instruction is phrased in language like this:
The Oregonian does not complain of a similar instruction given below, but rather contends that the question should not have gone to the jury at all.
1. The trial court in the case at bar deemed the evidence sufficiently controversial to make a question for the jury. Analytically, this practice may not always lend itself to a fastidious application of the rule that the jury decides fact and the court decides law. Whether or not a given person is the servant or the contractor of another is ordinarily a question of law, where the facts are clear. Where the facts are in dispute, however, it becomes necessary to submit at least the questions of fact to the jury. If more than one inference may be drawn from the facts, the jury makes the selection in arriving at a general verdict. See, e.g., Kowaleski v. Kowaleski, 235 Or 454, 385 P2d 611 (1963); Fleming v. Ambulance Co., 155 Or 351, 362, 62 P2d 1331, 64 P2d 519 (1937); Roemhild v. Home Ins. Co. et al, 130 Or 50, 278 P 87 (1929). If special interrogatories are employed, under ORS 17.415, the court would have to decide whether the answers were consistent with the general verdict. See Whelpley v. Frye, Adm'x, 199 Or 530, 263 P2d 295 (1953).
Whenever the trial court concludes in a preliminary way that the case should go to the jury for a general verdict, the trial court has in effect concluded as a matter of law that the questioned relationship was at least arguably that of master and servant. *601 In other words, the court necessarily has decided in such a case that the jury is free to impose liability. Thus, the trial court obliquely rules in such cases that the case falls within that class of cases to which the doctrine of respondeat superior can apply. See, on elasticity in the matter of liability under the general verdict system, Traynor, Fact and Skepticism and the Judicial Process, 106 U Pa L Rev 635, 639, 640 (1958).
2. There is no basis for reversal in the case at bar unless this court can say as a matter of law that Badgett was an independent contractor. The ultimate legal question in this case is whether the particular facts, viewed most favorably for the plaintiff, bring the relationship of Badgett and The Oregonian within the allowable range in which a jury can say that the master-and-servant relationship existed. The jury could have found that The Oregonian gave Badgett general directions with reference to methods and results to be obtained. The jury likewise could have found that The Oregonian indirectly exercised some control over the detail of Badgett's operations. The evidence that supervisory personnel from the newspaper's circulation department made frequent visits to Badgett permitted the jury to infer that these visits were related to Badgett's methods of operation.
The written contract required Badgett to furnish the publisher with lists of all subscribers served by Badgett, and gave the publisher the ownership of such lists. The contract also gave the publisher the right to terminate the relationship on thirty days' written notice with or without cause. Accordingly, if Badgett wanted to keep his "franchise", he would have to deliver the papers to the satisfaction of the publisher. While Badgett testified that he was self-employed and that he received no directions concerning the manner *602 in which he was to do his work, his testimony contained ambiguities if not contradictions.
He said, for example, that the circulation supervisors did not tell him he had to have his papers delivered by a certain time, but rather that "you could hold business better if you would have the papers out by six o'clock in the morning." He testified that supervisory personnel from the circulation department rode with him and showed him how to solicit customers. He denied that they gave him specific directions in other matters. Whether the supervisors gave Badgett suggestions or instructions was a matter the jury was entitled to decide based upon its consideration of all the evidence.
The jury was not bound to take the wholesale-retail language of the written contract at face value. It was entitled to look beyond the written instrument and draw from the evidence its own inferences concerning the behavior of the parties. The jury was likewise entitled to draw upon common knowledge and experience in evaluating the testimony. It could, for example, take into consideration the publisher's interest in cultivating the circulation of its newspaper as a valuable asset to sell to advertisers. Thus the jury could infer that the reason Badgett was frequently visited by circulation representatives was because the newspaper management was exercising some degree of control over the distribution of the papers to the subscribers. We do not hold that the amount of supervision exercised in the case at bar was sufficient to constitute Badgett an employe as a matter of law. Neither can we hold that Badgett was an independent contractor as a matter of law. We hold that there was evidence from which the jury could draw its own inferences on the matter.
*603 The law generally contains no policy against the subcontracting of all or part of the operations of an industry to independent parties. Whether such contractors are financially able to protect the public from losses caused by their negligence is, theoretically at least, a matter of indifference, if they are truly independent. Where, however, an enterprise in an integral part of its operation makes regular use of the services of individuals over whom it reserves absolute economic control, i.e., the right to hire and fire virtually at will, a jury can find that such service personnel are subordinates. See Fleming v. Ambulance Co., 155 Or at 360, and authorities cited. This is so even though between the parties the persons performing the services are characterized as contractors.
While The Oregonian has placed some reliance upon the fact that Badgett owned and operated his own automobile, and upon the fact that he delivered periodicals for other publishers from time to time in connection with, and incidental to, the delivery of newspapers for The Oregonian, these facts were considered by the trial court and by the jury, and were found to be insufficient to overcome other evidence tending to place Badgett in a subordinate role under the practical control of the circulation department of The Oregonian.
We hold that there was no error in overruling The Oregonian's several motions[2] which would have eliminated The Oregonian as one of the defendants.
*604 The other assignments of error challenge various instructions. With reference to the contributory negligence of the plaintiff, we are satisfied that the matter was for the jury and was properly submitted.
With reference to the various instructions concerning the specific acts of negligence charged to the defendant Badgett, there was testimony to support the submission of the specifications of negligence which went to the jury.
The evidence concerning the measure of damages likewise presented a question for the jury. There was some evidence that the plaintiff could have realized certain salvage values, the exact amounts of which were not placed before the jury. This did not make the verdict so speculative that it must be set aside as without foundation in the proof.
We have given careful consideration to the various assignments of error and have found none that discloses a basis for reversal.
Affirmed.
PERRY, J., dissenting.
I am unable to agree with the majority since, in my opinion, there is no substantial evidence in the record that the publishing company had the right to exercise control over the manner in which the defendant Badgett controlled and operated his newspaper delivery business.
In my opinion the posture of the case is such that the jury is left to speculate as to what may or may not be the relationship between the publishing company and Badgett. The publishing company was entitled to an instruction as a matter of law that there was a *605 failure of proof on the part of the plaintiff to establish that defendant Badgett was an agent of the company.
I would reverse.
Mr. Justice ROSSMAN concurs in this dissent.
[1] "* * * * *
"3. The Dealer will pay the Company for all newspapers furnished at the prevailing wholesale prices from time to time fixed by the Company, such payment to be made by the Dealer promptly upon receipt from the Company of a statement of account and in no event later than the fifteenth of each month, provided, always, that upon termination of this agreement, all moneys owing by the Dealer to the Company shall be immediately due and payable.
"4. The Dealer shall conduct his business in the course of which he causes said newspapers to be distributed, without the aid, advice or supervision of the Company or the Company's employees, and according to the Dealer's own means and methods, without control, direct or indirect, by the Company, and in such manner as not to impose liability on the Company for any act or omission of the Dealer or his subordinates.
"5. Retail and wholesale prices of said newspapers shall be at the rates from time to time established by the Company, and subscriptions to said newspaper shall be taken at the retail rates to subscribers from time to time established by the Company.
"* * * * *
"11. The Company may forthwith terminate this agreement or suspend performance hereunder without notice in the event the Company's plant or business is subjected to a strike or other * * * [delay in publication], or in the event the bond or security furnished by the Dealer becomes valueless, or decreases in value to such extent that it fails to afford the Company adequate protection, or in the event of any breach of this agreement by the Dealer. In any event, either party may terminate this agreement upon giving the other party thirty (30) days' written notice of intention to terminate.
"* * * * *."
[2] The plaintiff had also alleged in a separate cause of action that The Oregonian negligently employed an incompetent driver, but this issue was withdrawn from the jury and was not preserved on appeal. This cause of action was based on negligence rather than on vicarious liability, and, if before us, would present completely different problems. | 769d4c5a9ea6d24576b4ea8493d99982a5ce6d0d794705d467203b12f0ad8466 | 1963-11-06T00:00:00Z |
6a88b3e6-c7e5-43f5-8519-d79496cedc29 | School Dist. 7 v. Weissenfluh | 236 Or. 165, 387 P.2d 567 | null | oregon | Oregon Supreme Court | Reversed and remanded December 18, 1963.
*166 M. Keith Wilson, Enterprise, argued the cause and submitted a brief for appellants.
Charles R. Cater, La Grande, argued the cause and submitted a brief for respondents.
Cecil H. Quesseth, Special Assistant Attorney General, Salem, submitted a brief amicus curiae on behalf of the State Board of Education in support of appellant's position. With him on the brief was Robert Y. Thornton, Attorney General, Salem.
*167 Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, O'CONNELL, GOODWIN, DENECKE and LUSK, Justices.
REVERSED AND REMANDED.
O'CONNELL, J.
This is an appeal from a decree of the circuit court of Wallowa county declaring invalid the action of the defendant District Boundary Board in making changes in the boundaries between three school districts.
The requests for the boundary changes were made in two petitions filed with the defendant boundary board, in each case by three legal voters of the proposed new districts in accordance with ORS 329.730, which provides in part as follows:
*168 The changes requested in the petitions were made by the boundary board after giving notice as required by ORS 329.730 (4),[1] and after holding a hearing upon the proposed changes. The minutes of the board show that the chairman of the board reviewed the requirements which govern the boundary board when acting upon a petition for annexation, after which members of the audience were invited to express their support or opposition. Both points of view were expressed and were recorded in the board's minutes. The minutes also reported the action of the board in passing upon the two petitions. The action on both petitions was reported in substantially the same manner. The minutes report the action on one of the petitions as follows:
The trial court held that the board "did not make the findings of fact contemplated and required by statute as the basis for its action, and that, therefore, the said Boundary Board did not have jurisdiction to change the boundaries" of the designated school districts.
1. We do not construe ORS 329.730 as requiring the boundary board to recite findings of fact based upon evidence of record. It is true that the statute authorizes the board to make boundary changes only "if it finds" the prescribed conditions. But this is merely a statement of the standards circumscribing the board's authority. ORS 329.730 is silent as to the character of hearing procedure preliminary to a boundary board's final action in changing district boundaries. However, in School District No. 68 v. Hoskins, 194 Or 301, 312-313, 240 P2d 949 (1952), it was held that "inasmuch as the law requires the posting of notices, it may be implied therefrom that the legislature intended a hearing should be held." The type of hearing intended was not specifically described. However, the court did say that the purpose of the meeting was to make it possible for persons opposed to any proposed change "to remonstrate and to present evidence in opposition," and that "the Board, in determining the question, should give consideration to the entire record." It was said that the board acted in a "quasi-judicial" capacity. In spite of the reference to the right "to present evidence" and to the board's "quasi-judicial" function and its duty to "give consideration to the entire record," it seems *170 clear that the court did not treat the statute as requiring an adversary hearing at which testimony would be taken and recorded and from which formal findings of fact would be made.[3] The court held that there was no appeal from the decision of the board and that the remedy by way of writ of review, although appropriate to attack the board's jurisdiction and the illegality of its procedure, would "not lie to correct mere errors in the exercise of rightful jurisdiction, or to inquire whether the rulings of an inferior tribunal upon the law and the evidence, and in the application of the law to the facts, are correct." (194 Or at 314). Thus in referring to the board's quasi-judicial function, it does not appear that the court intended to describe the board as a judicial tribunal but simply intended to describe the exercise of judgment or discretion which is equally necessary in the exercise of either the judicial or legislative function.
2. Since the statute is silent as to the type of hearing intended and the Administrative Procedure Act (ORS 183.010 to 183.510) is not applicable, we must derive the legislative purpose through other sources.[4]*171 The choice is between a trial type of hearing and a speech making type hearing.[5]
3. The important inquiry in making the choice between the two types of hearing is whether an adversary hearing procedure is constitutionally necessary and if not, whether the legislature nevertheless deemed it desirable in the particular area of regulation.[6] Certainly an adversary hearing in proceedings to fix school district boundaries is not necessary in the sense that it is required to satisfy procedural due process under either the United States or the Oregon Constitutions. Generally it is said that such a hearing is not necessary because an alteration of school district boundaries is a legislative decision. Typical is the statement in Zilisch v. Auer, 197 Wis 284, 294, 221 NW 860 (1928):
Other cases, including our own, have expressed a similar idea.[7]
*172 Whether the board's action is denominated as legislative or judicial is, however, unimportant and the attempt to make the distinction is perhaps fruitless. Davis, after setting forth a number of attempts to define legislative and adjudicative functions, notes that each lacks precision in some respect.[8] He concludes that:
4. It is true that the board's action in altering school district boundaries may affect a citizen in a variety of ways; in the amount of taxes he will have to pay, the distance his children will have to travel to school, the quality of instruction his children will receive, and other consequences. But residents and taxpayers do not have any personal or property rights in a particular school district boundary arrangement which are entitled to be asserted in an adversary proceeding in frustration of the board's effort to carry out its policy-making function.[9]
5. The failure of the legislature to provide in the *173 statute for a hearing suggests that the legislature did not feel that it was necessary for the delegated power to be exercised in a judicial manner. The inference becomes even stronger when the traditional legislative function is delegated to a regulatory body made up of elected representatives of the people, as is the school district boundary board.[10]
6. In the present case the board's minutes disclosed the basis upon which it proceeded in making the boundary change. It was not necessary to record any more specifically the facts which it considered in arriving at its conclusion.[11] If the board acts capriciously or beyond the delegated power, its action may be attacked in a proper proceeding.[12]
The decree of the lower court is reversed and the cause is remanded with directions to dismiss the petitions for writ of review.
[1] ORS 329.730 (4) provides as follows:
"(4) Before any new district is established or change made in the boundaries of any existing district, the district boundary board shall cause notice to be given in the manner described in ORS 331.010 for school district meetings in the proposed district, or as provided in ORS 331.010 in each of the existing affected districts. The notice shall show the boundaries of the proposed new district or the changes to be made in the boundaries of any existing district, and the session of the board when the same will be done."
[2] It is patent that the reference to ORS 329.720 was an inadvertence and that ORS 329.730 was intended.
[3] It is to be noted that at the time the Hoskins case was decided the statute did not contain the requirement that the board find the prescribed conditions set out in ORS 329.730 (2) (a), (b) and (c). But considering the rationale of the case, it is fair to assume that the court would not have required a different type of hearing if the statute at that time had set forth the prescribed conditions.
[4] The rural school board is not an agency as defined in ORS 183.310 (1):
"(1) `Agency' means any state board, commission, department, or division thereof, or officer authorized by law to make rules or to adjudicate contested cases, except those in the legislative and judicial branches, and except the State Board of Parole and Probation, the Public Utility Commissioner, the State Tax Commission, the Civil Service Commission, Department of Finance and Administration, Department of Motor Vehicles, and the State Industrial Accident Commission."
[5] Fuchs, Procedure in Administrative Rule-Making, 52 Harv L Rev 259 (1938), refers to the former as "adversary procedure" and the latter as "auditive procedure."
[6] Ibid.
[7] Stanbery v. Smith, 75 Or Adv Sh 653, 377 P2d 8 (1962); Vestal v. Pickering, 125 Or 553, 267 P 821 (1928); Hammond Lumber Co. v. Board of Supervisors, 85 Cal App2d 568, 193 P2d 503 (1948); State ex rel Resenstahl v. Storey, 144 Kan 311, 58 P2d 1051 (1936); Musick v. State ex rel Miles, 185 Okla 140, 90 P2d 631 (1938); School District No. 3 of Adams v. Callahan, 237 Wis 560, 297 NW 407, 135 ALR 1081 (1941).
[8] 1 Davis, Administrative Law Treatise § 5.01, pp. 287-288 (1958).
[9] School District No. 3 of Adams v. Callahan, supra; Zawerschnik v. Joint County School Committee, 271 Wis 416, 73 NW2d 566 (1955).
It has been held that the state may modify or abrogate any powers granted to school districts and that such districts may be abolished without the consent of the residents thereof or altered without provision or adjustment of indebtedness or equities between the districts. County School Board v. School Board of Covington, 197 Va 845, 91 SE2d 654 (1956).
[10] "* * * A legislature is a representative body whose members are supposed to and to a large extent do reflect the will of their constituents. Those affected by a pending measure are not denied opportunity for participation in the determination, for they are presumably represented within the legislature itself. * * *
"Like a legislature, a municipal government, by reason of its representative character, may sometimes act without providing opportunity for party participation even though an administrative body might be required for the same action to provide such opportunity." 1 Davis, Administrative Law Treatise § 6.05, p. 376 (1958).
[11] The cases which follow stand for the general proposition that in proceedings for the alteration or reorganization of school districts affirmative findings of fact are not necessary to support the governing body's determination. People ex rel Harty v. Gully, 2 Ill App2d 321, 119 NE2d 540 (1954); State ex rel Reorganized School District v. Robinson, 276 SW2d 235 (Mo 1955); School District No. 49 v. School District No. 65-R, 159 Neb 262, 66 NW2d 561 (1954); Anderson v. Peterson, 78 N D 949, 54 NW2d 542 (1952); Town of Thornapple v. Callahan, 244 Wis 266, 12 NW2d 23 (1943).
[12] School District No. 68 v. Hoskins, 194 Or 301, 240 P2d 949 (1952); School District No. 1, Multnomah County v. School District No. 45, Multnomah County, 148 Or 554, 37 P2d 873 (1934); State ex rel School District No. 25 v. Evans, 82 Or 46, 160 P 140 (1916). | 82f6e53a5ef57df2f0e771cfdc78e9c0789bea9b5b3a2e93ccbf5df96ec426d8 | 1963-12-18T00:00:00Z |
f0476fa9-e9b6-4649-9c5a-be2f7e1f7948 | Towne v. Cottrell | 236 Or. 151, 387 P.2d 576 | null | oregon | Oregon Supreme Court | Affirmed December 11, 1963.
John L. Flynn, Ashland, argued the cause for appellants. With him on the briefs was Richard C. Cottle, Ashland.
R. Gene Smith, Grants Pass, argued the cause for respondents. With him on the brief was Gene L. Brown, Grants Pass.
*152 Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, Justices.
AFFIRMED.
DENECKE, J.
This is a suit to quiet title involving the construction of the Oregon statute relating to pretermitted heirs. The plaintiffs claim as devisees under the will of Maude Towne. Two of the plaintiffs are children of the testatrix. The other plaintiffs are the grandson of the testatrix and his wife. The plaintiff grandson was the son of Thomas Towne, a predeceased child of the testatrix. The defendants are the other children of the decedent, Thomas Towne, and, therefore, likewise grandchildren of the testatrix. They claim an adverse interest in the properties under the provisions of ORS 114.250 on the ground that they are descendants of Maude Towne not named or provided for in her will.
The Oregon pretermission statute, ORS 114.250, provides:
Defendants now claim such portion of the properties as each would be entitled to had Maude Towne died intestate.
*153 The cause was tried to the court upon a stipulation of facts. The court below found that defendants had no interest in any of the properties and entered a decree for plaintiffs.
1. The single question here is whether mention of a deceased child in the will and provision for the son of such deceased child is sufficient to avoid the pretermission statute as to the three daughters of the deceased child who were neither named nor provided for in the will.
Maude Towne executed her will in June, 1958. The will appears to have been drafted by an attorney, but there is no direct evidence of this. In this will she stated:
By her will Maude Towne bequeathed and devised her entire estate to her two living sons, Norman and Ira, except for one parcel of real property which she devised to "my grandson and his wife, Thomas A. Towne and Hally D. Towne." Defendants alleged in their answer "that the said issue [defendants] of Thomas A. Towne, deceased, were then known to the decedent." "Then" referring to the time Maude Towne made her will.
2. The pretermission statute should be applied in light of its objectives. This court has recently restated the object of this statute in the following terms:
When we look to the reasons behind the statute, it appears probable in this case that the testatrix had neither forgotten nor unintentionally omitted her granddaughters. The fact that they were known to her is admitted by the defendants, although they now claim that their allegation of this fact in their answer does not mean that the grandchildren were in her mind at the time of making of the will. This contention strains the inferences to be drawn from such allegation.
The holding in Roots v. Knox, 107 Or 96, 212 P 469, 213 P 1013 (1923), seems to require an extremely literal translation of the statute. In that case the testator had provided for his three living children and his granddaughter, the daughter of the testator's deceased daughter, omitting any mention of the deceased daughter's two sons. The court held:
However, the Roots case does not seem to have followed the trend of the Oregon decisions stated in Gerrish v. Gerrish, supra (8 Or 351), and most recently expressed in Barnstable v. U.S. Nat. Bank, supra (232 Or 36). The interpretation and history of the Oregon statute as established in the Gerrish case is dispositive of the present case. In Gerrish this court stated:
In Fugate v. Allen, 119 Mo App 183, 95 SW 980 (1906), the court stated that, under the interpretation formulated in Guitar v. Gordon, 17 Mo 408 (1853), the mention in a will of a deceased child is sufficient to show that the testator has not forgotten the children of the deceased child. The Guitar case thus stands for the proposition that mention of a deceased child is sufficient "naming or providing" as required by the pretermission statute. In this case we have two additional facts, not present in Guitar, even more adverse to pretermission. The grandchildren were known to the testatrix when she executed her will and she made a devise to one.
The decree of the lower court is affirmed. | 9fc48cd8997566ec6ddf54008f3e818592913fe25dd09f0a1121f785a21eba3a | 1963-12-11T00:00:00Z |
05afc286-c14b-4d9d-83bd-c8e0b53a0d57 | Wicklander v. SALEM MEM. HOSPITAL | 235 Or. 488, 385 P.2d 617 | null | oregon | Oregon Supreme Court | 235 Or. 488 (1963)
385 P.2d 617
WICKLANDER
v.
SALEM MEMORIAL HOSPITAL
Supreme Court of Oregon.
Submitted September 25, 1963.
Reversed and remanded October 9, 1963.
Lewelling & Gies, Salem, for appellant.
Rhoten, Rhoten & Speerstra, and Myron L. Enfield, Salem, for respondent.
Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, Justices.
REVERSED.
PER CURIAM.
This is an action for damages for personal injuries allegedly sustained as a result of negligence of the defendant, Salem Memorial Hospital, while plaintiff was a patient in said hospital. The hospital pleaded *489 the defense of charitable immunity, the court overruled a demurrer to that defense, and when plaintiff declined to plead further the court dismissed the action.
Since this court in Hungerford v. Portland Sanitarium & Benev. Assn., 235 Or 412, 384 P2d 1009 (September 5, 1963), discarded the rule of charitable immunity, this case must be and is reversed.
ROSSMAN, J., Specially concurring.
I dissented from the majority opinion in Hungerford v. Portland Sanitarium, 235 Or 412, 384 P2d 1009 (September 5, 1963); but the holding in that case now undoubtedly represents the law of this state. Further dissent would be futile. Although I have full confidence in the reasons stated in my dissent, I nevertheless believe that it is now my duty to accept the law as held in Hungerford v. Portland Sanitarium, supra. I therefore concur.
PERRY, J., concurs. | cc090ccfaf86872a40807acf921b80d0dbff87ba8a1aa382954c98e85d86d32c | 1963-10-09T00:00:00Z |
5a1c0b25-10cd-4944-987b-344f0c64b373 | Meyers v. Muno | 236 Or. 68, 386 P.2d 808 | null | oregon | Oregon Supreme Court | Affirmed November 20, 1963.
*69 Arthur S. Vosburg, Portland, argued the cause for appellant. With him on the brief were Vosburg, Joss, Hedlund & Bosch and Norman L. Lindstedt, Portland.
Carlton R. Reiter, Portland, argued the cause for respondent. On the brief were Reiter, Day, Anderson & Wall, Portland.
Before McALLISTER, Chief Justice, and PERRY, O'CONNELL, DENECKE and LUSK, Justices.
AFFIRMED.
DENECKE, J.
This is an action to recover for personal injuries sustained in an automobile accident. The accident occurred on U.S. Highway 101, a two-lane highway, between Taft and Otis Junction, Oregon. Plaintiff, proceeding in a northerly direction, had rounded a curve and had then stopped in the middle of the straightaway to make a left turn. She then had given an arm signal for the turn while waiting for a southbound vehicle to pass. At this point the defendant, also going north, rounded the same curve and observed the plaintiff's car. When she saw that plaintiff was stopped to make a turn, defendant applied her brakes, but she was unable to stop before hitting the rear end of plaintiff's vehicle. The force of the impact pushed plaintiff into the path of the on-coming vehicle, precipitating a more serious collision.
As a result of the accident, plaintiff sustained injuries to her back and head, and, in the trial which followed, there was testimony by three doctors, the *70 plaintiff, and her mother as to the nature and seriousness of these injuries. After trial the jury returned a verdict for the plaintiff for $7,500 general damages and $358.41 special damages.
1. Defendant first complains that the instructions pertaining to damages prejudiced her cause by overemphasizing the question of damages through reiteration of practically every element two or three times. It is not necessary to include the instructions on damages here. They take up three pages of a total of fifteen pages of instruction in the transcript. We are satisfied that these instructions, though perhaps overlong and somewhat repetitious, did not tend to prejudice the defendant's case. As we said in Bronkey v. Olson, 145 Or 662, 666, 28 P2d 243 (1934):
It must be remembered that much of the testimony in this trial concerned the nature and extent of the injuries sustained by the plaintiff. The question of damages is important in any negligence case, and the law of damages should be thoroughly presented to the jury. We do not think that the trial court overemphasized this aspect of the case. Furthermore, at the end of his instructions on damages, the trial court specifically cautioned the jury in these terms:
2. We do not here consider any other allegations of error in the instructions on damages because there *71 were no specific exceptions taken at the trial. In excepting to instructions counsel must inform the court in what respect he thinks the instruction is wrong. Hamilton v. Union Oil Company, 216 Or 354, 367, 339 P2d 440 (1959). At the trial, counsel objected only to the repetitious nature of the instructions as placing undue emphasis on the question of damages. Therefore, we have only considered that question.
3. The court instructed the jury that they could not arrive at their verdict by a quotient verdict. The defendant excepted and now claims this instruction was erroneous because it was not prefaced by a statement that if the jury found for the plaintiff, "You will not arrive at your verdict by a quotient verdict, etc." Defendant contends that without this preface, the instruction assumes that the only verdict the jury could return would be one for plaintiff. While it is true that, standing alone, this instruction might mislead a jury, the instruction must be considered in light of the effect of the instruction as a whole. We find that, viewed as a whole, these instructions adequately inform the jury that they must first find for the plaintiff on the question of negligence before considering the question of damages. In Denton v. Arnstein, 197 Or 28, 54, 250 P2d 407 (1952), this court stated:
4. The defendant assigns as error the court's instructions to the jury on the "basic rule" and the court's *72 failure to withdraw from the jury plaintiff's charge of excessive speed by the defendant. The ground of her exception was that there may have been evidence of improper control or lookout, but there was no evidence of excessive speed. Defendant testified that she was traveling at "maybe forty miles an hour * * *." The indicated speed at this point on the highway was 55 miles per hour, and the trial judge so instructed the jury. There was testimony by the plaintiff that her automobile could have been visible to the defendant for a distance of 257 paces, and defendant testified that she started to apply her brakes at a point which she estimated was approximately 150 feet from plaintiff's vehicle, but she was unable to stop. There was also evidence of the nature and width of the road and the weather conditions at the time of the accident.
The basic rule provides, among other things: "No person shall drive at a speed which is greater than will permit the driver to exercise proper control of the vehicle and to decrease speed or to stop as may be necessary to avoid colliding with any person, vehicle or other conveyance on or entering the highway in compliance with legal requirements and with the duty of drivers and other persons using the highway to exercise due care." ORS 483.102(2).
If the jury found the plaintiff was conducting herself properly on the highway, they could reasonably have found that the defendant collided with her because defendant was going at a speed in excess of that prescribed by the "basic rule." As this court has frequently stated, speed, control and lookout are "interrelated and mutually dependent." Nicholas v. Fennell, 184 Or 541, 551, 199 P2d 905 (1948); McReynolds v. Howland, 218 Or 566, 346 P2d 127 (1959).
Judgment affirmed. | 72aef93225dee03915fad3069ac1cf9aeb59321b7178f1a4661cf1cf9ebb110c | 1963-11-20T00:00:00Z |
354627b3-5d64-4a9a-a39e-913f76c055f8 | Spring v. Liles | 236 Or. 140, 387 P.2d 578 | null | oregon | Oregon Supreme Court | Reargued December 6, 1963.
Reversed and remanded December 11, 1963.
*141 Garry Kahn, Portland, argued the cause for appellant. Philip A. Levin reargued the cause for appellant. With them on the brief were Pozzi, Levin & Wilson.
George L. Hibbard, Oregon City, argued and reargued the cause for respondent. On the brief were Hibbard, Jacobs, Caldwell & Kincart, Oregon City.
Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, Justices.
REVERSED AND REMANDED.
O'CONNELL, J.
This is an appeal from a judgment of involuntary nonsuit entered against the plaintiff in his action for damages for personal injuries suffered while riding in defendant Liles' automobile.
Plaintiff testified that on the night of the accident he, defendant Liles, and others were employed by defendant Logsdon to gather chickens at various chicken ranches in the vicinity of the accident preparatory to taking the chickens to market. When the work party was about to start out for the first ranch it was found that there was not sufficient room in Logsdon's automobile for all the employees, whereupon Logsdon directed plaintiff to ride in defendant Liles' car. The work crew reached the first ranch safely. En route to the second ranch the Liles car left the road and plaintiff was injured. Plaintiff did not pay Liles for the ride nor did Liles receive any extra compensation from Logsdon for the use of the car. Liles explained that he *142 used his car because he "wanted to work, because I could go and some of the other guys could go, too" and "[b]ecause I was the only one that had a car besides Larry Logsdon." Liles testimony makes it clear that Logsdon asked Liles to transport plaintiff and other members of the chicken catching crew to their place of work.
The judgment of involuntary nonsuit was based upon the proposition that the evidence established that the plaintiff was a person who had accepted a ride in an automobile without conferring a substantial benefit on the driver and was, therefore, a guest under ORS 30.110.[1]
1. ORS 30.110 precludes recovery for simple negligence where the occupant of the vehicle is a "guest without payment" for the transportation. Generally the fact that the defendant-driver does not receive a substantial benefit for the transportation has been deemed sufficient to characterize the plaintiff-occupant as a guest. However, the absence of substantial benefit to the driver is not the sole criterion to be used in determining the host-guest relationship under the statute. This is demonstrated by such cases as Kudrna v. Adamski, 188 Or 396, 216 P2d 262, 16 ALR2d 1297 (1950) where the driver received no benefit and yet the *143 plaintiff-occupant was permitted to recover.[2] Other cases further illuminate this point. Thus it is held if an occupant makes a protest with respect to the manner in which the vehicle is being driven and requests to be let out he is not a guest within the meaning of the statute.[3]
2. A person is not a guest within the meaning of the statute unless he is transported without payment and he is also a guest in other respects. In the illustrative cases referred to above the occupant, although paying nothing for the transportation, was not within the guest category because some other element in the relationship *144 was lacking. In Kudrna v. Adamski, supra at p. 399, it was held that our "statute implies that in order to become a guest one must exercise a choice in the matter." Not only must the relationship be created consensually, the transportation must be furnished by the host as a gesture of hospitality.[4]
In many of the cases it seems to be assumed that if a substantial benefit does not inure to the driver the relationship must necessarily be that of host and guest. Consequently, even where no element of hospitality is involved in the creation of the relationship, the court may deem it necessary to find a substantial benefit to the driver. Thus in the cases where an employee is riding with his employer in the furtherance of the employer's business, the opinions generally explain the absence of the host-guest relationship on the ground that the driver receives a benefit in that his business purpose is served. Similarly, where plaintiff is riding in the defendant's car, not as the recipient of defendant's hospitality but because plaintiff and defendant are engaged in a common mission, the assumption seems to be that unless a substantial benefit to the defendant is found the relationship will be that of host and guest.
For example, in Simms v. Tingle, 232 Ark 239, 335 SW2d 449 (1960), plaintiff and defendant were engaged in the non-profit mission of selling and distributing church literature. In holding that plaintiff was not a guest within the meaning of the Arkansas *145 guest statute the court felt it necessary to find a benefit flowing to the defendant. The court said (at p. 244, 335 SW2d at 452): "The appellee's [defendant's] contention that no benefit flowed to the appellee in collecting money for the church we hold to be without merit for otherwise a great host of religious workers have wasted many valuable hours."[5] A further indication that the status of passenger is not solely determined by the payment of compensation to the driver is found in cases where despite actual payment the *146 plaintiff is held a guest because the relationship is characterized as primarily a social one.[6]
We believe that the insistence upon finding a benefit to the defendant-driver involves an incomplete analysis of the problem. As we have indicated, the absence of a benefit to the defendant does not necessarily establish a host-guest relationship between the defendant and the plaintiff-occupant. Even in the absence of a benefit to the defendant, the plaintiff is a passenger (as distinguished from a guest) if his presence in the vehicle does not arise primarily from the hospitality of the defendant. In the cases alluded to above there was no benefit to the defendant that has any relevancy in explaining whether the relationship of the plaintiff-occupant to the defendant was that of guest or passenger. In Simms v. Tingle, supra, the benefit to the defendant in the form of spiritual satisfaction was not the element which took the plaintiff out of the guest category; the plaintiff was a passenger because the transportation was not offered primarily as a gesture of hospitality. And so with the cases in which the plaintiff employee is riding with defendant employer on a business mission; the plaintiff is a passenger rather than a guest, not because the defendant receives a benefit as a result of transporting the *147 plaintiff but because the element of social hospitality does not motivate the transaction.
The point we are stressing here has been recognized occasionally in other cases. In Kijanko v. Bialecki, 21 West Weekly Rep (n.s.) 214, 216 (1957) the court was called upon to interpret a statute similar to ORS 30.110, containing the phrase "guest without payment." Maybank, J., obseved that the plaintiffs had made no payment for the transportation and said: "Such a passenger must also be describable as `a guest.'" He went on to explain, "I do not think that such an appellation fits the plaintiffs. * * * One is invited to the home of a friend for social intercourse: He is a guest. On the other hand one invited to the home of a friend for a purely business conversation is not a guest, not even if the person inviting offers some hospitality coincident with the business talks. It seems to me that the meaning of the word `guest,' as used in the statute, must imply hospitality and imply that hospitality is the reason for the transportation." The court then went on to define a guest in terms of a social relationship with his host. A similar view was expressed in Wood v. Thompson and Tompko, 23 West Weekly Rep (n.s.) 14 (1957).[7]
We construe ORS 30.110 to mean that two elements must co-exist to create the host-guest relationship: (1) there must be no substantial benefit to the defendant, and (2) the invitation extended to the plaintiff *148 must be motivated predominantly by the defendant's spirit of hospitality.
3, 4. This interpretation of ORS 30.110 comports with one of the principal purposes which gave rise to its adoption. That purpose is stated in Albrecht v. Safeway Stores, Inc., 159 Or 331, 336, 80 P2d 62 (1938).
We agree with the recommendation in 2 Harper & James, Torts § 16.15, p. 961 (1956) that the operation of the guest statutes should "be carefully confined to those who come clearly within the first purpose of the rule" (the purpose explained in the quotation from the Albrecht case set out above).[9]
We now consider whether plaintiff falls within the term "guest without payment" as we have construed it. The evidence was sufficient to support a jury conclusion that defendant and plaintiff were both employed by Logsdon. Plaintiff was directed by Logsdon *149 to ride with defendant. Logsdon requested defendant to transport plaintiff and other employees in defendant's car. There is no evidence that defendant had any obligation either to Logsdon or plaintiff to use his car in transporting plaintiff or the other persons employed by Logsdon. Nor is there evidence that defendant received any benefit pecuniary or otherwise for transporting plaintiff and the other employees. There being no benefit to defendant, the question is whether there is present the other element essential to the host-guest relationship, i.e., the hospitable character of the invitation.
5. It might be said that since defendant had no legal or moral obligation to transport plaintiff the granting of permission to ride was an act of "hospitality." On the other hand, looking at the transaction from plaintiff's standpoint it would seem reasonable to say that he rode with defendant not because the latter's hospitality was extended to him but because he was directed by Logsdon to ride in defendant's car. He rode in defendant's car only because there was no room for him in Logsdon's station wagon. If plaintiff had been injured while riding in Logsdon's car, the relationship could certainly be considered nonsocial and, therefore, not within the statute. Plaintiff found himself in defendant's car as the result of the exigency of the moment. Plaintiff and defendant were thrown together because a problem arose incident to their common employment. We do not believe that this is the type of motivation bringing a driver and passenger together which characterizes the creation of the host-guest relationship. The jury would be warranted in finding that plaintiff was riding in defendant's car not as the recipient of defendant's hospitality, but as a co-employee forced by circumstances to ride in defendant's car to *150 further a common interest in carrying out the job both were employed to perform. Under these circumstances we think the jury could properly decide that the permission to ride was not motivated by defendant's "kindness" or "hospitality" to borrow the language from Albrecht v. Safeway Stores, supra.
We do not mean to suggest that the relationship did not arise from hospitality simply because plaintiff and defendant were destined for the same place of employment. A plaintiff who rides to work at the invitation of a co-employee ordinarily would be a "guest" within the meaning of ORS 30.110.[10] The important factor in the present case is that the plaintiff rode with the defendant, not as a result of defendant's invitation nor of plaintiff's acceptance, but because both were directed by the common employer to ride together for the purpose of carrying out the employer's plan of employment.
The judgment is reversed and the cause is remanded for a new trial.
PERRY, J., dissents.
[1] ORS 30.110 read as follows:
"No person transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against the owner or operator for injury, death or loss, in case of accident, unless the accident was intentional on the part of the owner or operator or caused by his gross negligence or intoxication or his reckless disregard of the rights of others."
ORS 30.100 was repealed by 1961 Oregon Laws, ch 578, § 1. ORS 30.115 was enacted in lieu of ORS 30.110 and 30.120.
[2] In the Kudrna case the defendant was transporting a four-year old infant at her mother's request to an appointment with a doctor. The defendant received no compensation for the trip. It was held that the relationship of host and guest is a consensual one in which the guest must exercise some choice and that a four-year old infant is incapable of exercising that choice and hence incapable of being a guest. Alternatively, the court noted that a child entering a car in the custody of its parent does not do so voluntarily and cannot be said to have accepted an invitation.
See also, Rocha v. Hulen, 6 Cal App2d 245, 44 P2d 478 (1935) (child being driven to hospital by defendant without consent of parents is not a guest); Green v. Jones, 136 Colo 512, 319 P2d 1083 (1957) (two-year old child cannot be a guest because incapable of accepting invitation).
There are cases in which a minor is held to be a guest. Compare Welker, Adm. v. Sorenson, 209 Or 402, 306 P2d 737 (1957) (infant was a guest when riding in automobile in custody of mother who was also a guest) and the cases cited in Annotation, Infant as Guest Within Automobile Guest Statutes, 16 ALR2d 1304 (1951).
[3] Andrews v. Kirk, 106 So2d 110 (Fla 1958) (plaintiff's status changed from guest to involuntary passenger after she protested as to defendant's driving, requested to be let out, and the defendant refused); Blanchard v. Ogletree, 41 Ga App 4, 152 SE 116 (1930) (protest against manner in which defendant was driving coupled with request to leave the car held to remove plaintiff from the operation of common law guest rule). Cf., Senechal v. Bauman, 232 Or 217, 375 P2d 60 (1962) (mere protest not enough to indicate intent to terminate the host-guest relationship). See Annotation, Protest by Guest Against Driver's Manner of Operation of Motor Vehicle as Terminating Host-Guest Relationship, 25 ALR2d 1448 (1952).
[4] "The relation of host and guest presupposes (1) that the host has a right to extend hospitality to the guest at the particular place where he is invited to be present, and (2) that an invitation, express or implied, has been given." Richards v. Parks, 19 Tenn App 615, 93 SW2d 639, 642 (1936) cited in Kudrna v. Adamski, 188 Or 396, 402, 216 P2d 262 (1950). To the same effect see Green v. Jones, 136 Colo 512, 319 P2d 1083 (1957).
[5] The Simms case is only one example of the rather tenuous benefits upon which the courts have relied in their quest to find a host-passenger relation between the defendant and plaintiff. Phillips v. United States, 182 F Supp 312 (E D Va 1960) (dictum that veteran being transported in an ambulance is not a guest since the transportation is in consideration of his earned rights to hospitalization); Tucker v. Landucci, 57 Cal2d 762, 371 P2d 754 (1962) (plaintiff traveling to dinner with fellow employee to discuss employer's style show held not a guest since plaintiff was involved in the show and defendant would benefit from the show as a salesperson); Kruzie v. Sanders, 23 Cal2d 237, 143 P2d 704 (1943) (benefit sufficient to remove plaintiff from guest status found in her agreement to assist the defendant with Christmas shopping); Dobbs v. Sugioka, 117 Colo 218, 185 P2d 784 (1947) (plaintiff not a guest where plaintiff and defendant employed by the same principal, engaged in the same activity, on an obligatory mission, and defendant was permitted to furnish transportation with expenses to come from the principal); Thuente v. Hart Motors, 234 Iowa 1294, 15 NW2d 622 (1944) (scrap drive to aid the defense of country said to be mutual enterprise of plaintiff and defendant thus removing plaintiff from operation of guest statute); McGuire v. Armstrong, 268 Mich 152, 255 NW 745 (1934) (patient being transported in automobile by county nurse in the course of her employment held not to be a guest); Vest v. Kramer, 158 Ohio St. 78, 107 NE2d 105 (1952) (boy scout held not to be a guest of assistant scoutmaster while assisting in paper drive for benefit of troop); Parrish v. Ash, 32 Wash2d 637, 203 P2d 330 (1949) (evidence that plaintiff on the day prior to the accident had paid driver one dime for transportation held sufficient to warrant jury's finding that plaintiff was not a guest). See also, United States v. Westfall, 197 F2d 769 (9th Cir 1952); Buffat v. Schnuckle, 79 Idaho 314, 316 P2d 887 (1957); Zaso v. De Cola, 72 Ohio App 297, 51 NE2d 654 (1943).
[6] In re Dikeman's Estate, 178 Kan 188, 284 P2d 622 (1955) (occupant held to be guest though she had promised to pay share of expense for trip to convention at which she and driver were delegates); Phelps v. Benson, 252 Minn 457, 90 NW2d 533 (1958) (neither plaintiff's ownership of car nor his agreement to share expenses with driver removed him from the operation of the guest statute); Hale v. Hale, 219 N C 191, 13 SE2d 221 (1941) (payment for gasoline by father on trip with son to visit relative held insufficient to remove father from guest status); Casper v. Higgins, 54 Ohio App 21, 6 NE2d 3 (1935) (student returning from debate tournament in instructor's car held a guest even though he contributed to expenses of the trip).
[7] A comment on these cases appears in 29 Manitoba Bar News 81, 82 (1957), where the author states:
"These cases clearly indicate that there are two separate and distinct qualifications that must be specified in determining the nature of the relationship between the driver-owner and the passenger. FIRSTLY: There must be no question of payment or gain in a commercial sense to the driver, or owner, and SECONDLY: the circumstances of the transporting must be of a social nature."
[8] "The purposes of the statutes were to scotch `the proverbial ingratitude of the dog that bites the hand that feeds him,' and to put a barrier in the way of vexatious litigation the vexation presumably which would result from dishonest collusion between guest and host against the host's insurance carrier." 2 Harper & James, Torts, § 16.15, p. 961 (1956).
[9] Continuing, these authors recommend that "`Guest' should be defined so as to include only those who ride gratuitously in every substantial sense. It should exclude those who ride with the host for a common purpose (other than pleasure) or primarily as a favor to the host (though not in the way of business) or pursuant to any prearrangement for sharing the burdens of the journey, so long as the occupant's undertaking is not so vague or so trivial as to indicate that there was no real sharing worthy of the name." 2 Harper & James, Torts, § 16.15, pp. 961-962 (1956).
[10] Benjamin v. Rutherford, 146 Cal App2d 561, 303 P2d 1079 (1956) (employee transported to work by fellow employee in car furnished by company for that purpose held guest); Bummer v. Liberty Laundry Co., 48 Cal App2d 648, 120 P2d 672 (1941) (plaintiff who was driven to work in employer's truck by fellow employee held to be a guest where there was no definite arrangement and no compensation.) The contrary result frequently prevails where there is a "share the ride" or "share expenses" agreement; Nielsen v. Kohlstedt, 117 NW2d 900 (Iowa 1962) (brick tender riding to work with fellow worker held guest where there was no payment); Ehrsam v. Borgen, 185 Kan 776, 347 P2d 260 (1959) (an agreement whereby the plaintiff and the defendant exchange rides to and from work removed the plaintiff from the operation of the guest statute). See also, Annotation, Host and Guest Relationship, Within Statute or Rule Regarding Liability of Driver or Operator of Motor Vehicle for Injury to Guest, As Between Parties to "Share-a-Ride" Arrangement, 146 ALR 640 (1943) supplemented by 161 ALR 917 (1946). | 34e11b84d3fdcab3f70e28d7d9e512ac5f77e4c062c8a313566abeb3d55424b1 | 1963-12-11T00:00:00Z |
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