*1 194 9, 1,
Submitted on motion
dismiss December
allowed December
1953, argued
April 20,
March
affirmed
v. REDIFER et al.
MOREY, Administratrix
2d 418
264 P.
Claude H. Giles and <&Hed- Joss contra. lund, Portland,
LUSK, J. DeFeyter respondents, Roy
The E. B. and J. John- doing son, business as Co., Power Electric Clyde appeal E. Irion have moved to dismiss the as to them. wrongful appellant,
The action is one for death. The doing J. C. Redifer, as J. C. Co., business Redifer moving respondents joined the were defendants. On granted judg- the trial a Johnson were involuntary ment of nonsuit, the found in against appellant favor of Irion and the Redifer. Redi- fer appeal served notice on written of his co-defendants plaintiff. support as well as on the In of the motion urged moving respondents to dismiss it is that the are parties upon appeal. not adverse the appeal given Where written notice is it must be upon party parties served “such adverse or as have appeared upon in action or or suit, the or their attorney”. § 10-803,OCLA. party meaning
An adverse
within the
of the stat
party
judgment
ute
a
whose
is
interest in relation to the
sought by
in conflict
the modification or
with
reversal
appeal. Silbaugh
Building
v. Guardian
& Loan
Ass’n., 164
P2d
286, 291, 297,
943,
Or
99 P2d 1017,
Estate,
101 P2d
In re
420;
432,
Brooks’
167 Or 428,
433,
Neither has such appeal. A interest in relation to this reversal modi judgment not fication of would affect them They slightest. judgment a have each them their brought against plain- favor in an action them the plaintiff appealed. tiff and from not which the has judgments proceedings These a bar are further against appellant them. Counsel are mistaken assumption judgment in their that a reversal of the against against him would revive the action the other defendants. The case of Wilkens v. Western States Grocery 114 P2d relied 542, 167 Or on interpretation. appellant, that case will bear no such In against Grocery judgment there Western States alleged joint Company, one of four tort feasors. granted judgments involun- other defendants were tary Grocery Company served nonsuit. States Western appeal plaintiff alone. We held that notice of on re- committed on the trial and reversible error was necessary not for a trial. It manded ease new say, saying, it without for us to because went parties parties trial would be the same as the new *3 namely, appeal, plaintiff States and Western on the Although Grocery Company, neces- others. we no legal relationship sarily of the various considered evidence, as disclosed another, defendants one to refusing only erred in sub- the court we that decided whether Western States mit to the possession Grocery Company and control of had injured. Any pos- plaintiff premises on which ruling upon the reflection incidental sible, granting trial orders of the court’s correctness judgments not, of nonsuit could other defendants defendants, interests of those did affect not, nor this court they and neither case, out of the were bring jurisdiction power them back had other in. necessary nor respondents moving are neither appeal, to dis- and their motions
proper parties to this allowed. miss are *5 Merits
On Vosburg argued appellant. Arthur for S. the cause Harry Coquille, argued A. Slack, of the cause and respondent. a filed brief for
Before Warner, Chief and Justice, Lusk and Tooze, Justices. Brand,
TOOZE, J. damages
This an is for action for the death of Morey, plaintiff’s resulting Alvin Jess intestate, alleged negligent operation by defendants two jury. Judgment motor trucks. The case was tried ato involuntary nonsuit was in favor of entered defend- DePeyter Boy ants E. and B. Johnson. J. Clyde a
returned verdict in favor of defendant E. Irion against plaintiff, against plaintiff in and favor of de- Judg- for fendant J. C. the sum $15,000. Bedifer accordingly, ment was entered from which defendant appeals. Bedifer prosecuted by Morey,
The action Hazel as admin- is Morey, istratrix of estate of Alvin Jess deceased, herself, benefit of for the widow, and benefit surviving grandchild dependent of one and of decedent, pursuant provisions (OBS § 8-903, OCLA 30.020).
Defendant Bedifer dba Bedifer Co., J. C. C. here- J. engaged referred in defendant, after to as the motor headquarters trucking at in business, with Portland, county, Oregon, operates owns Multnomah DePeyter E. B. number of motor trucks. Defendants copartners, Boy dba Power Elec- Johnson, J. trie Co., and hereafter referred to as Electric are engaged contracting business, in the electrical with headquarters Washington. Spokane, at Defendant Clyde operates E. motor Irion owns own truck engaged log hauling. and is time of accident this Prior involved had entered into a contract action, Electric Co. with *6 government for the construction of the United States power line Bandon and Beach, an electric between Gold Curry Oregon. in con- counties, in and Under Coos necessary poles States furnished the the United tract and delivered construction of the transmission line for Oregon. The con- Warner, at to Electric Co. them by subject imposed to conditions tract was pro- 276(a), § after USCA which Act, Davis-Bacon viding tracts provides: for certain [*] “ * minimum [*] wages and the further on government stipula- con- may from contractor so be withheld that there tion may payments be considered neces- of accrued as much contracting pay sary by and to to laborers officer mechanics tractor * [*] employed contractor or any subcon- April into a con- Electric entered 1952, Co. 1, On hauling for de- Bedifer defendant tract with Oregon, poles power from Warner, line fendant Curry job counties. The contract and in Coos site to the writing follows: reads as in and Contractors “Electrical Washington Spokane, April 1,1952 “ Company C. J. Bedifer 26th Avenue 2309Southeast Oregon Portland Bedifer Mr. J. Attention: C.
Subject: 16D-8613,Bandon-Port Contract Beach, and Port Orf ord Gold
Orford 115 Line K.V. Transmission “Gentlemen: understanding to
“We confirm a verbal wish Roy Sargent your Mr. reached our between and company covering your proposal poles to deliver subject transmission line as follows: Company agrees “The C. Redifer to J. load the government poles yard furnished from the at War- Oregon transport point to ner, them as near as possible truck and with trailer the structure site approved an where same will be unloaded in manner ready skidding and left for to the structure location by others. Company responsible “J. C. Redifer be will damaged poles opera- and broken a result of his loading, transporting, unloading in tions City Company, furnish will Power Electric Certifi- covering Liability cates Insurance Public Property Damage, protecting Power Electric Company against arising all liabilities job. hauling accidents on Company agrees “J. Redifer haul C. these sufficiently poles that of our advance schedule so poles at all times will be delivered advance *7 operations of our and the event of to do failure City Company may so, Power Electric elect to com- plete by the balance of the work other means con- days given. after tracts five notice has been performance “For the faithful of the work out- City Company agrees herein lined Power Electric pay Company to J. Redifer at C. the flat rate of (Twenty fifty cents) per pole. seven dollars $27.50 employees “J. C. will be carried on the Redifer Company payroll Power Electric and the employees paid employer amounts cial these with So- Security and Industrial Insurance contributions will deducted added be the amounts due C. J. Company poles at delivered Redifer fees specified above. paid “The balance of the monies due will be Company day Redifer or about J. C. the 15th (Fifteen per cent) month, of each calendar less 15% completion in accord- of the work retained to assure ance this contract. with letter thirty percentages paid retained will be
“The days completion of the work. after your agree- acceptance indicate of this “Please space provided by signing in the below ment returning copies [sic] for our files. one
“Very truly yours, CITY ELECTBIC COMPANY
POWEB [Sgd.] E.B.DeFeyter E. B.
“EBD :nb Company Accepted for the J. Bedifer C. (Italics
By [Sgd.] ours.) Bedifer.” J. C. employes all Pursuant to terms of this contract, job pole-hauling engaged on the of Bedifer were who wages, payroll of Electric Co. Their were carried on required security deductions, were social other less paid directly The amount to them Electric Co. wages the several becom- their deducted from sums was ing It due under contract. obvious defendant payment portion respecting of the contract this agree- incorporated wages employes was into the government requirements. pursuant ment performance on his In contract the terms performed, kept part defendant furnished to be trailers a number of motor trucks with and maintained provided trucks One of such the drivers thereof. truck, with a two-wheel a 1944 model Studebaker length of truck thereto, combined attached trailer Immediately prior being to and and trailer feet. 61% case, in this which the accident involved at time of May p. this 1952, m. on about 5 accident occurred being (empty) operated and truck with trailer employe, in a an Baker, Gordon driven one Jack *8 county. northerly highway No. 101in Coos direction on preceding Immediately the defendant accident, operating Irion was Ms truck and trailer, loaded with logs, northerly highway, in a direction on said ahead being operated by of attempted truck the Baker. Baker pass log ap- to overtake and the loaded truck while proaching highway. a blind curve said Baker WMle passing log was in the act of truck, automobile Morey riding approached in wMch Alvin Jess north. A collision the Baker between truck and the appeared attempted automobile imminent. Baker swing right log his truck to the in front of the truck, doing right but in so rear end trailer struck of log thereby causing the left front of end truck, great trailer Morey to be thrown with force into the Morey automobile. the direct As result of tMs collision, personal injuries, suffered from the effects of which he died witMn short time thereafter.
Very any question little if was raised as to the negligence of of Baker, and, course, no claim of con- tributory negligence was made as to the decedent. The trial court found that there was sufficient evidence jury in the record to submit to the negligent, whether defendant Irion was but the found in Irion’s favor. principal question involved on the trial and
also this court relates to the status of Baker at time of the accident; is, that whom was he em- ployed? employe Was he an of the defendant, or was he employe an assign- the Electric Co.? The several appeal directly indirectly ments of error on this bear question. upon that upon provisions quoted
Based of the above con- (called tract and the of defendant as an by plaintiff), judge adverse witness the learned trial employe found as a matter of law Baker judgment involuntary defendant, and entered a nonsuit in favor of the Electric Co. in its However, *9 jury, aas
instructions to the the trial court submitted an Baker of fact to whether was employe defendant. assignment con-
As his first of error defendant sustaining plaintiff’s tends that the trial court erred in objections questions numerous directed to one relating Kuensting, for defendant, Frances a witness compensation proceedings to certain in a claim for pending before Industrial Accident Commis- the State Oregon. stenographic re- witness, sion of The porter, proceedings. Defend- made a record of those proof proof. ant made an From that offer offer accidentally appears it that Baker Jack Cordon was August of a collision 22, 1952, killed as the result be- vehicles, tween motor one of which he was driv- two ing. compensation com- A claim for was filed with the hearing surviving upon A mission widow. on March 1953. claim was held the commission DeFeyter appeared E. B. as a for claim- witness support ant and testified in of the claim. witness testimony. DeFeyter that Baker recorded his testified employ quote briefly in the of the Electric Co. We proof: the record made on the offer of response ques- “Q Did Mr. in to this following agree- ‘Q make the answer: That tion Mr. I wonder if we could ment, now, have Bedifer, with (agreement presented) please? he that, Did that time this statement make this answer: ‘At superintendent, Bedifer, our made Mr. with Sargent, Mr. and it was our Mr. talked to Bedifer formerly understanding that the men that had been employed by Mr. Bedifer be transferred to would employ; our equipment Mr. would furnish trucks Bedifer hauling price
for that the material; this equipment rental he would receive for this be the would price difference the contract he had agreed upon payroll for the men and the amount of equipment. operating did Mr. Bedifer used that equipment hauling for furnish trucks this mate- price equip- rial he receive ; that should ment rental would be the difference of the contract price agreed upon pay- he had the amount of ’ operating equipment. roll men for the used Did he answer? so Yes,
“A sir.” proof, many On the offer the witness testified questions given by, more directed to, answers DeFeyter upon hearing before the all commission, designed to establish fact before the commission *10 employ in that Baker was of Electric Co.
Upon proof, plaintiff’s conclusion of the offer of objection attorney restated his to the evidence as follows: my objection. “Mr. I Slack: want to restate I object all, to to the admission of this ground any testimony and for the reason that DeFeyter person any or E. B. statement of or is
hearsay upon binding plaintiff any and not way and for the further reason it is not the best evidence and the further reason it not an against admission as the interest Power Elec- longer tric is no the case and Co. for the further my present reason that client not at the time hearing and did not have a chance to cross DeFeyter any examine Mr. or other witness.” plaintiff’s objections trial court sustained rejected proof. and offer In this the trial court error. committed no proof separably
An offer not made as to each which answer to Kuen- witness sting’s contrary, attention was directed. On the single proof incorporating offer of was made the en- DeFeyter’s tire record of examination aas witness Many given by commission. before the the answers upon interpretation placed based were he upon company the contract between and Redifer; opinions,
they invol- mere conclusions or amounted to ing questions and fact. answers of law Such mixed any objectionable in circumstances have been would example, subject strike. For we a motion to following: quote the Mr. Baker?’ Answer Question: hired “Q ‘Who Sargent.’ superintendent, testi- Mr. Was that
‘Our mony given? “A Yes sir. following question page, was:
“Q Next he hire him wonder, did he—how could I ‘Now agreement A I under- here?’ ‘As he had this when agreement, would recommend Redifer stand that you him hired him. be and then he Wouldn’t they going out a Union, than to the send different you hiring him, went to a hire whether man and agency man Mr. Redifer hired this because testify? equipment.’ operating Did he so
“A Yes sir. page: far as drivers, ‘The so “Q And the same ’ though? you Answer: with the trucks know, came had been hired Question: ‘And as I know.’ ‘As far job? by You didn’t hire truck on the Mr. and came with Redifer you getting are them, is that what ques- I ‘Yes, I claim did.’ Was at?’ Answer: given? tion asked answer “A Yes. *11 you go get the man to out and “Q ‘Well, did empty having
go somewhere?’ truck the truck, on the to work took the men that were ‘We Answer: employees our Mr. Redifer as recommended time payroll same in to our office the turned anybody payroll were and the checks as else’s so answer? issued.’ Did he Yes, “A sir. that. You showed “Q Question: ‘I understand your withholding them, from here, checks
us but the question them.’ Answer: is: Who hired pretty my opinion a That is loe hired them. It is agency you If call a labor answer. hard they man, still, a man, recommend to send out
207 yonr employe man the becomes and not the labor agency’s.’ question asked Was that and answered? (Italics our.) Yes, “A sir.” proof For the reason of that offer contained clearly objectionable, that was if for no properly rejected by other reason, the offer was objectionable portions trial court. The contaminated required separate trial the whole. The court was not good Cosgrove Tracey, v. the bad. 1, 156 Or 64 P2d 6, 1321; Morris v. De Co., DuPont Nemours & 126, 984, 346 Mo 139 ALR SW2d 129 53 352, 358; Am § § 89, Jur Trial, 99; 88 CJS 187, Trial, 82a. testimony DeFeyter
The offered of before In vary dustrial Accident Commission tended to the terms company written contract between his and Redi agreement speaks plainly fer. The of “Redifer’s em ployees” persons who are to be carried on the payroll of Electric and Baker Co., was one of those employes. directly Had the been issue between defend ant type and Electric it is manifest Co., that this evidence not would have been admissible. However, apply as defendant contends, rule does not when controversy parties between one to the agreement persons. written and third In such cases parol agree evidence is admissible to show true though vary even ment, it terms the written instrument. The rule is stated in Biscuit Co. Pacific Dugger, 516, v. 70 P 513, 523, 525, Or as follows: “* * * The rule that an instrument writ- ing by parol cannot be contradicted or varied evi- only applies parties dence between the and their privies, and cannot be invoked controversies be- parties parties third tween of the to the [Citing cases].” contract Wilkens v. Also see West. States Groc. 103, Or v. 542; 114 P2d & 109, Smith Farmers Nat. Merchants Bank, 84, 110 57 Or P 410.
208 support the admissibil- rule does not
However, that given testimony ity De- in this case Feyter Accident Commission. Industrial before the DeFeyter a on as witness called Had defendant applicable rule have been would case, trial of this DeFeyter a plaintiff, not called as was but witness. testimony contends that
Defendant further DeFeyter Accident Commission the Industrial before admission rule that admissible under the against is admissible be a defendant interest of complainant. against As half of a codefendant position, authority cites v. defendant Carithers Evidence, §638; Am 538, 20 Jur Jarrell, 842; 20 Ga ALR 50. The 22, 14 Evidence, §318; 1097, 31 CJS example, point. For are not in authorities cited supra, simply is this: 1097, in 31 CJS statement against his own of a defendant “The admission competent is of a codefendant and in favor interest for the codefendant.” foregoing only authority for the state cited note Hatcher, 352, 72 Ga and CJ v.
ment Cade Georgia held that an ad case the court 60. In this in against favor defendant, interest of one mission the answer of the contained in codefendant, of his making for the admission, is evidence defendant rule is announced Carithers The same codefendant. cry supra, from the situa is a far but that Jarrell, v. against admissions in instant case. The in the tion sought evi introduce into defendant terest which plead contained were not in this case dence they this case. ings, the trial of made on nor were given that all of the obvious It is hearing commis- the accident before on the plaintiff hearsay is concerned. pure insofar sion is hearing, party nor was to that in nowise She present she it held. afforded no when was She was *13 object questions opportunity improper an- Manifestly, nor to such evidence swers, cross-examine. against is inadmissible her. There is no merit in de- assignment fendant’s first of error. assignment
As his of defendant error, second charges giving that the trial erred in court follow- ing jury: instruction to the
“Now, there has been introduced in this case an pur- exhibit A-l known as Plaintiff’s Exhibit which ports De- to be the contract between Redifer Feyter partners doing and Johnson, business as City you Power Electric and if should find Co., that this is tween these contract was entered into be- which parties, then under the contract Redi- agreed City poles fer tric for the flat to haul for the Power Elec- persons doing or these business such, per pole points rate $27.50 you indicated, and if find Baker em- that was the ployee of Redifer but that he was carried on the payroll of the Power Electric for some Co. purpose actually employee but that he was Redifer, then, course, Redifer would liable be authority scope for his acts within his and, acting scope authority if he was within the of his driving empty you this truck the time if at find employee he of Redifer, that would be liable for was the then Redifer any alleged negligence on the part negligent of Baker. not Baker Whether or you is a of fact for to determine and not you. you right for me to tell I have no to tell you merely intimate to what the facts are. I tell you you way, if find the facts to be a certain then provisions apply.” certain of the law In our consideration of this instruction attention given parts must be to other of the record. At the stipulated open outset of the defendant court trial, quoted that the contract above was contract be- respecting himself and tween Electric Co. work being performed accident Redifer when the occurred. During by plaintiff called as an adverse witness. he made the course of his the statement examination, employe Baker that was an of Electric and was not Co. employed perfectly apparent him. However, it was from his based this statement was en- tirely npon interpretation of the terms of the anything npon contract, else, written and not which following inquiry: itself led the court to make the carry- employed Mr. Baker “COURT: Was ing out this contract Plaintiff’s marked Exhibit A-lt working you
“A Was he mean? contract, this “Q Yes. Yes,
“A he was.” *14 his case in chief and as a his On witness on own permitted testify along behalf, Redifer was to the testimony same lines covered De- offered Feyter (that given commission). before the accident gave interpretation provisions He his of the own contract between himself and Electric it be- ing DePeyter somewhat similar to that contained testimony. deny no time, however, At did he that the agree- written contract contained all the terms of the parties, ment made between the in the nor, indeed, light stipulation of the made outset trial, at the of the deny DePeyter could he it. did in his testi- Neither mony claim before the Industrial Accident Commission all terms that the written contract did contain not agreement of the and between Electric Co. Redifer. testimony But defendant maintained that his arrangement with the Electric Co. was in the nature leasing agreement, merely furnishing him of a with maintaining necessary trail- and motor and trucks upon It not ers. That was his conclusion. was based anyone actually prior said as to what agreement the time the written was entered nor into, directly afterward. snch Moreover, conclusion con- plain flicts with the terms of the written contract. Company agrees Under the contract “the J. C. Redifer * * * * * * poles transport to load the and * * * agrees them and “J. C. Redifer to haul poles” per pole. (Italics these ours.) at the flat rate of $27.50 everything parties
Furthermore, done plain under the contract was consistent with its terms which on their face showed that the truck drivers were employes. defendant’s plaintiff’s objection,
Over defendant testified to a allegedly conversation he prior had with the execution of the written contract. He was examined as follows: talking limiting “Q I am now and it to the your arrangement of what him between you your understanding him with as to furnishing employment of trucks and of men
and all about it. “* * * * * [Objection overruled.] made and you
“Q question, Do understand Mr. Redifer?
“A Yes. jury.
“Q Tell the My arrangement “A I this: was to send job pay operating trucks down to this all the expenses of the trucks and Power was to take job pay the men over at they the men and *15 employ.” would be under their Manifestly, that does not constitute evidence agreement of an actually other than the one entered writing. “they into in The statement would under be employ” simply their Redifer’s conclusion; it is writing direct contradiction of the itself, wherein “they” specifically designated are as “Redifer em- ployees”. employes along the other son, -with
Redifer’s payroll carried on of Electric Co. was Redifer, charge of the trucks and Jr., was foreman Redifer, had hired his drivers. asked as to who son on When wages, job paid Redifer testified that and who Then he examined as had done so. Electric Co. follows: you specifically him “Q Do who hired know City Power Electric Co.? “A For the Power Electric Co.?
“Q Yes. I him there. Well, “A sent down him he “Q Who hired was down there? when arrangements foreman? made the with the Who I he “A foreman he down. insisted be when went Why? “Q my somebody somebody
“A Because trucks had to have absolutely that I was sure —so seeing my my trucks. There interests, was was after ’’ money a lot of in them. cross-examination, Redifer testified: On you “Q a matter of hired the men Now, fact, —you yourself, you? truck hired the drivers didn’t “A I did. your charge
“Q son was in of these trucks And drivers, and the truck wasn’t he? right.
“A That is pulled If had he wanted he could have “Q to, job, he? a truck off the couldn’t that, I if “A am not sure about he could. question: If “Q I will ask this he had Well, doing like the man wanted to and felt the that truck driver off the wasn’t job, job? pulled have he could Certainly “A could have fired the truck he any foreman driver; he was can fire the foreman; any job.” men on
313 cross-examination, further Redifer testified: On your boy, <fQ Redifer, How old is J. C. Jr.? “A About 29. [*] [*] [*] # [*] charge 11Q and the trucks He was of the men job, he?
on this wasn’t “A foreman. He was you?
“Q “A sent him didn’t down, You Yes, I sent.him down.” not called Defendant’s as a nor witness; son testify anyone any agreement to else called to understanding expressed other than that in the written contract. testimony, by
Defendant’s entire which he at- vary tempted to the terms of the written contract, carefully analyzed, when amounts to no more than his interpretation agreement own of the and its written testify effects. He did not terms or conditions orally agreed upon inadvertently, had that or other- been omitted from the written contract. wise, His testimony largely opinions consists conclusions. light
However, it was in the of this no trial doubt that the court left to the A-l whether Exhibit was the contract between de- Co., fendant and Electric and whether Baker anwas employe of defendant. provisions of the written contract between unambiguous. parties plain are The intention parties language employed.
of the
is made clear
circumstances,
In such
it was the function of the court
interpret
legal
the contract
declare its
effects.
—
City Reedsport v. Hubbard,
—,Or
Considering whole, the record as a the trial jury outright court should have instructed A-l constituted the contract between the de- Exhibit express and Electric and that under the fendant employe of that contract Baker was the of de- terms position taken That is the the court fendant. *17 involuntary entering judgment of nonsuit favor of interpretation It of the Electric Co. was the court’s opinion, in our it a contract, and, written was correct interpretation.
Evidently it was out an abundance of caution that of judge questions the careful trial to the submitted these questions as of fact. That of benefit to de- a If benefit to which he was not entitled. fendant; anyone thereby, plaintiff. prejudiced it was light stipulation at the
Moreover, in the of the A-l contract be outset of the trial that Exhibit was the and Electric and the tween defendant working under defendant that Baker was this con tending any testimony part of tract, on the Kedifer falsify stipulation inadmis and evidence was to party stipulates or sible. a to an action or suit When deliberately a matter testifies to a concrete not as fact, opinion, appearance, un estimate, inference, or memory, a certain but as considered circumstance of adversary him it is entitled to hold to case, judicial If no mistake is claimed or a admission. as stipulating testifying party con shown, the so have the benefit of other evidence crete fact cannot falsify tending v. Holteen Nord it. Valdin Note, 260 P2d 169 ALR 504; strom,, 135, 144, 199 Or 800. already disposes the remain- said What we have ing assignments as the first two. error, well prejudicial fair trial. find no had a We The defendant record. error in the
Judgment affirmed.