Nordling v. Johnston

May 18, petition Argued February affirmed modified September 14, rehearing denied v. JOHNSTON NORDLING 2d 994 P. 287 P. 2d 420 argued appellant. Warde H. Erwin the cause for Boyd theOn briefs were Erwin, & Portland. Sidney argued I. Lesak, Portland, for cause respondent. him on With the brief were Peterson and Pozzi, Portland.

Before Warner, Chief Justice, and Brand Lusk, and Justices. Latourette,

LUSK, J. brought, pursuant action

This to statute, wages, penalty, attorney’s recover and fees. ORS Oregon (ORS 652.150); 652.140; Laws ch 193 (ORS § 652.200). judgment OCLA 102-607 From a plaintiff jury based on a verdict of the the defendant appealed. has plaintiff alleged complaint in his that between

June employed June 12, 1950, defendant plaintiff, Walter Newman and John Jacobsen as “fall- ers and buckers” of certain timber near Vernonia, Oregon, agreed stipulated wage at the of $2.50 per per M of timber felled and bucked; M $1.50 trimming all logs, felled, timber and for broken com- monly per alleged known as “breaks”, M. It is $1.00 assigned that Newman and Jacobsen their claims to plaintiff for collection. support There was evidence to foregoing alle- gations support allegations and evidence to other complaint respecting the amount earned under the by plaintiff assignors contract and his and the wilful pay failure of defendant to moneys the men the prosecution them in earned of the work. The judgment statutory penalty included the and an attor- ney’s fee.

The defendant error assigns rulings of involuntary motions for judgment court denying his these and a verdict. ground nonsuit directed One fatal variance between pleading motions was claimed said, alleges it is because, complaint proof a joint contract while establishes proof several on the assignors, between and his contract plaintiff defendant, agree on the other. We hand, one the contract, a but we joint that the establishes proof complaint alleges concur in the view that the cannot 189 Keen, 445, contract. McGinnis v. Or a several involved 907, controlling. agreement 221 P2d The is to the one under consideration in that case was similar the amended here, complaint alleged and we held in is true that the contract. 189 Or It joint in names brought case action was the McGinnis the contract, to the earners, the three wage parties in the name of one of them to whom of, here, instead as two have their claims. It is the assigned, the other con which, according defendant’s assignment an intention declare on a several, evidences tention, that, than contract. The is joint, argument rather in action must be the of the brought name since and since (ORS in interest an action 13.030), real party must be contract the name of brought joint upon (Pitts v. Crane, interested 114 jointly all those Or Keen, P v. 475; McGinnis 597, supra), plain on a several contract when rely tiff “must he pleads claims separate of two of Newman and assignment follow, does This Jacobsen.” is joint the contract alleged several whether any subsequent affected unilateral acts cannot be and, consequently, allegations the plaintiffs, claims of assignment two respecting will not convert to the contract pleading parties complaint joint from a on a contract to one on a sev party eral contract. If it be true, asserted, as is that a joint separately assign to a contract cannot his cause of action based then there thereon, has been fact assignment merely no and the result here is a defect parties plaintiff. plaintiff The came court into litigating arising joint the claim on the contract on joint behalf of himself and the other two contractors. might successfully defendant, true, have chal lenged proceeding. objection mode of this But the on parties a defect of account of must be taken de (ORS 16.270) 16.260, murrer or answer; otherwise it (ORS 16.330; is waived Blaser Fleck, Or 637). requires P So also the statute which prosecuted the action shall be in the name of the real party in It interest. “was enacted benefit of party protect being again defendant, him from for the cause. But harassed same if not cut from off any just against counterclaim offset or demand, judgment parties suing in behalf of and a will discharged, fully protect him then when is his concern Sturgis Baker, 43 at an end.” Or 236, 241, v. 72 P also, Title & Trust Co. v. See, United States Guaranty Fidelity Co., 147 255, 263, & Or 32 P2d 1035, cited. and cases there assignors “freely participated

In this case the “they of this action” in the maintenance and therefore completely be bound its result as as if will it had instituted in their names.” Title & been Trust Co. v. Fidelity Guaranty supra, Co., & United States objection by failing waived 264. Defendant to Or special interpose demurrer; case a was tried no joint differently all three of the than if contractors plaintiffs; prejudice and, named as as no had been rights defendant of the resulted, would be conception judicial contrary to the modern procedural purposes are established rules for which give first made contention the defendant’s heed to to procedure plaintiff For rested his case. had after the whereby out to re the court reaches “means is wrongs; remedy rights never become it must store purpose important it seeks to which than more Kirby, NE accomplish.” 243 NY 295, v. Clark Sheppard quoted approval Blitz, in Or with P2d 519. 511, 163 Closely foregoing related to the is the going of error to the allowance in claim defendant’s penalty. judgment the sum of as a ORS $356.34 provides: 652.150 employer, being financially wilfully

“If an able, any wages compensation pay any or to fails discharged quits employe employ- or is who his who provided penalty as a ment, 652.140,then, ORS nonpayment, wages compensation or for such employe of such shall continue from the due date paid until at the rate until action thereof same provided, commenced; therefor that no case wages days.” such continue for more than 30 shall penalty urges a claim for a is not Defendant argues assignable. Plaintiff that the statute does not damages, penalty liquidated provide for any against assignment that in the rule event penalty assignment extend an claim for does not solely made as is the case here. collection, attempted question by to raise the Defendant paragraphs complaint certain motion strike ground they “sham, frivolous, on the are irrele- contrary Para- vant and redundant are law.” against, allega- graph moved contains IV, one those pay that defendant’s failure to tions to the effect 324

wages stating three men was wilful and penalty amount of the for which defendant was liable. Paragraph alleged assignment V, which plaintiff for collection of the claims Newman against. grounds Jacobsen, was not moved ofOne of the motions for nonsuit and a directed verdict was penalty assigned. that a claim cannot be Assuming properly that the is before us, provision penal we consider first whether the in is character. accepted statutory penalty

An definition aof that it is an one which individual is allowed to recover against wrongdoer, wrong as a satisfaction injury or suffered, and without reference to the actual damage Martin, sustained. Noble v. 191 39, Wash P2d 1064; 70 Stevenson v. 237 Ia 21 Stoufer, 513, Cummings 287; NW2d v. Board Education, 190 533, 125 Okla P2d 989. purpose penalty

In the strict sense the of a is to punish against public justice, an offense afford private remedy person injured by wrongful to a act. Bowles v. Barde Co., Steel 177 421, Or 164 428, Huntington P2d ALR 692, 328; v. Attrill, 146 US L 657, 1123, ed 13 S Ct 224; Denison v. Tocker, generally NM P2d But this 184,229 is not the view (70 1), § 389, held CJS Penalties aas matter purely rejected of state law the recent we case of Daggett, Kinzua Lumber Co. Or 281 P2d 230. In earlier cases held we the statute (ORS provides 86.140), mortgagee which that if a fails discharge refuses, circumstances stated, mortgage performance after full of the conditions mortgagor thereof, he shall be liable to the “in the damages, hundred sum of one dollars and also for all damages neglect occasioned such actual or refusal

325 penal in char at law”, in an action is to be recovered to to purpose said be acter. The of the statute regard.” mortgagee “quicken diligence in this aof Malarkey O'Leary, P56 521. Since 499, 34 493, v. Or “penal recovery provision ais for the $100.00 strictly v. Knud construed. Knudson it must be one”, v. And in Ebbert 275 P 663. son, 635, 642, 128 Or 279 57, 64-66, 70, 131 Condon, Nat. Bank Or First pro under that P an action to recover held that 534,we three-year governed limi statute of vision was upon applying a statute for tations to “an action penalty or forfeiture.” legion considered which have

"While cases are penal question particular whether statutes are to but otherwise, character or there seem be few upon here under statutes like the one con decisions penal held to sideration. Such statutes have been be 34 Ida 204 Co., 707, Maries Lumber Robinson v. St. Going, App P 631, 935; P Martin v. 57 Cal 207 671; Singh, App 40 181 P 700, 844; v. Memil Cal Manford Chicago, Russell, I. P. R. 173 Ark 398, R. & Co. v. early 292 ALR 1206. In an Arkansas case 375, SW 51 applicable only a to the court said of similar statute pur employees, for a “It allowed double railroad is delay, pun compensation pose, for the and as a aas composed pay. It is of all for the failure to ishment purposes exemplary all elements and serves Ry. Leep damages.” Co., I. Louis, St. & S. 58 v. M. LRA 41 Am 264, Ark 25 23 407, 440, 441, 75, SW Supreme Rep But the Court United St construing statute the same as States, penalty, saying, “What held that it was law, federal applied, punishment may the element be ever name * * clearly predominates Missouri R. Co. Pacific L 41 65 ed S 565, 1087, Ct 593. Ault, 554, v. 256 US requiring of a a master or owner A federal statute wages pay ship, refuses to seaman his who fails or pay him a sum recover cause, sufficient without equal days pay wages for each and able as two delayed every day during payment has been which penalty provide held not forfeiture Huntley, compensation. 178 Mass Calvin v. Lyles NY Brothers, NE 435; Cox reasoning, proceed upon the decisions NE 226. These compensa only Congress that the extra said wages”, but because of tion be “shall recoverable purpose purpose”, Mr. said of the statute. “The (then Judge) in “or case, Cox Justice Cardozo the punishment predominant not one, was, at least the compensation but to the sea owner, of master or the ship upon Delay opportunity means of to man. loss during hardship the term of vessel. It means another improvident, waiting, often stranded the sufferer in con reference to the statute And, far from home.” by Supreme in R. Missouri sidered Court the Pacific supra, continued: the court Ault, v.Co. * * “* viewpoint government, From the provision predominantly penal, found this the court might, only not the statute as well it because so differing situation declared, the but also because of on hand and railroad workers the one seamen of (Italics added.) on other.” the provision in think that the here is We spur employer purpose penal to an in Its is character. they Compen wages payment due. are when merely employee is incidental. to the sation many points this of difference between There are provision considered which was 105.815, and ORS Daggett, supra. That v. statute Co. Lumber Kinzua damages by recovery one of double provides for

327 authority by cut timber is another without lawful whose involuntary.” trespass heldWe when the is “casual or provision penalty, for that the was not one “extraordinary statutory-liquidated damages dam ages”. recovery for a fact that the was allowed relevant that conclu act was considered nonwilful difficulty proving all the also, sion. were the So, damages in a of that real suffered case owner expense and trouble owner ldnd, which the put by necessity maintaining is an action wage statute, hand, court. on other Under liability only wrong, for a wilful additional expense litigation provision care of is taken attorney’s fees successful the allowance claimant. 652.200. The statute itself uses the OES given “penalty”. word The name it is exaction, (70 always controlling may 389, be CJS true, Ry. § Louis, Walsh, I. M. & v. 1; Penalties St. S. Co. light 222), 86 Ark 110 SW but it on the 147, sheds Argus legislative Hosiery v. Mills, intent. Robertson (CCA 6th); Floyd 285, 121 F2d 286 DuBois Inc., v. Soap NE2d 393, St on Co., 520, Oh reversed grounds, L ed 159; other US 63 S Ct Lykes supra; Brothers, Tocker, Cox Denison v. supra. quite

It counsel for true, is the defendant statutory a that a of action to recover contends, cause assignable. Assignments penalty 1086, 6 CJS is § Shrader, 73 Va 105, 112, 37. W As stated Wilson v. (which Ann 886 arose on 79 1916D 1083, SE Cas mining penalty coal five feet claim for a for within adjacent owner), an reasons that of land of “the rights, assignability personal preclude mere of battery and assault and slander, such as actions for Assignability obviously apply pure here. torts, other encourages litigation of such claims and The strife. principle public policy same forbids the conversion penalties into commodities assets.” The test of assignability right (Mitchell whether survives Taylor, 119), personal 41 P 377, 384, v. 27 Or rights do not survive. Rorvik North v. Lumber Pacific Co., 99 58,Or 190 P 195 P In 91, 331, Robinson supra, p. Co., v. St. Maries Lumber 34 Ida it 711, at right wage held was penalty that the to recover a claimant’s assignable. assignments is not But there the by delivery were endorsement and time for checks assignees paid which the in full. hand, other On the recognizes against assign in California, which the rule (Peterson penalty ment of a claim for a Ball, v. 187) Cal 296 P ALR 461, 291, 74 held in was Martin Going, supra, assignment wage that an v. claims purposes right of collection carried with it the assignee wage pen in the to sue both for alty. Granzow, Colcord v. P Okla brought 64 ALR 699,is similar decision. The suit corporation under a statute which made directors of liable to creditors where the directors created indebt capital corporation. edness excess of the stock of the plaintiffs assignees given Some of the were of notes by corporation. right The court held that the given by action on statute was based contract, assignments right and the carried with them the supra, as an incident to the debt. v. Ball, sue Peterson was an based on California statute similar action plaintiffs involved in the case. The Oklahoma sued corporation as trustees executed assignment corporation. benefit of creditors penal in court held that the statute was character, assignable. opinion the claims therefore not But the referring point was careful to out, Colcord Gran-

339 supra, v. Ben Farm Land and States Co. United zow, nothing App in the P that 794, nett, 55 Cal 299, of these the conclusion at variance with decision “is assignment the debt carries with cases that two liability imposed right of a director enforce the it the to expressing an penalty.” from The court refrained as a question, opinion naked said it is “the on that statutory upon penalty” right is not which to the sue (211 480). by corporation assignable Cal the question analogous decided in was A somewhat P LRA Larsen, Falconio v. 31 Or preference provided the in favor of A for a statute assign employees an whenever debts of laborers made, should such the benefit of creditors be ment for property proceeds paid out of the the claim to be assignment assigned. em such an 98 former After presented ployees verified debtor their of the insolvent by assignee prescribed A statute. claims to the as the exceptions claims, the which were there filed to debtor upon assigned plaintiff collection, Falconio for brought upon them. the action The defendant and he preference, being personal “a mere contended assignable. privilege”, opinion The in an court, was by said: Mr. Justice Wolverton, * * “ * merely It is here whether a

preferred claim of the class created the enact- assignable, assignee entitle is so ment prosecute in his own action name to establish amount, its nature and debt, if contested; opinion right that it is. are of the of exer- we claiming cising privilege preference we personal, pre- but, to be when exercised hold preference of the statement, sentation becomes wages, may or claim for an incident of debt assigned; may be and henceforth action be legal prosecuted in of the the name owner and interpretation the claim if contested. This holder of manifestly spirit in consonance with the designed protect deserving act. It class of usually dependant upon [sic] individuals, their recent are who earnings for the sustenance of them- dependant upon [sic] and selves those and them, undoubtedly purpose legislature was the of the to wages speedily the make of labor and the available, assignment preferred of their claims would more frequently promote purpose the than otherwise.” recognize "While that we the two cases are wholly they not that similar, have this much in common: they right both involve the a not whether ordi narily assignable may assigned be as an incident to a contract debt. It right of clear that “the naked is, course, ’’ may penalty assigned. a recover not be But the Shrader, reasons such a as in v. rule, stated Wilson supra, present would seem to be not all when, at assignment penalty as here, of is made as an assignment wage incident to an and not claim, only as a commercial transaction, but to enable the assignee to maintain an action for the benefit of assignors as well of himself. In such a as no com case plaint justly trafficking litigious can made in be a right. pro On the other that such method of hand, may, ceeding particular in instances, where there are against large single number of such claimants em ployer, purpose readily serve the convenience, apparent. that in hold, therefore, We the circumstances of this case the Circuit Court committed no in error refusing complaint allegations from the strike respect penalty. Going, supra. with Martin v. penalties The further contention cannot be re joint employment covered where there is a contract of adversely and decided was considered the defendant supra, p. at Keen, in 189 Or McGinnis we re-examining question. reason for no see evidence, that, It is contended under assignors relationship plaintiff and the and his between employer, employees and that of defendant independent they there contractors, and, were but that being provision penalty statute, fore, that the only employees, invoked cannot be benefit in this case. loggers applied for three

The evidence is that the job Ore- result an advertisement as stating gonian that the defendant wanted buckers They experienced loggers accustomed fallers. were sought They together out the de- to work crew. he took them to Vernonia, fendant Johnston They logging operation agreed upon town. near the his per compensation thousand for at the rate of $2.50 per for tim- timber felled and thousand bucked; $1.50 trimming logs per and for felled; ber bucked $1.00 Nordling spokesman group. for acted as the thousand. “saving his trees”, was concerned about and Johnston Nordling represented expe- of that reason their they compensation rience could do The rate this. agreed higher than which at on Johnston tools, first Johnston tendered the use his offered. unsatisfactory the them and used their men .found sledges wedges and and own save two saws be- longing paid their Johnston. The men own board to transportation. and their furnished own Johnston pointed tract timber and out to showed them his place they them where should commence the their falling they take in the and the direction were to work They limits of did not the the timber trees. know suggestions exception the of certain at time. With the regard a made with to “rotten fir” which Johnston job. Nordling do not tell how to the and he did them falling They bucked. did the Newman Jacobsen worked discharged by were Johnston after having claimed, one week on the Johnston ground, that, his certain contrary to felled two instructions, they so in to trees, did such manner as negligent break and them. damage

On court cannot this evidence the as a matter say of law that the of an relationship was that independent contractor. The determining test for whether one is servant an independent contractor is not the actual exercise of control—the actual interference by the manner and employer with the method of accomplish- v. the result—but interfere. Harris ing right Comm., Ind. Acc. State 191 Or 268, 230 P2d 254, 175, there And authorities cited. no fact is more single conclusive of the existence of right this to interfere end right employer than unrestricted he chooses service whenever without particular regard the final result of work itself. 269. Idem, The justified would have finding evidence power this reserved to the of dismissal was defendant. This and other circumstances—some pointing to an inde- contractor relationship—made pendent and the court jury, submitted one it to the jury Bowser instruction. See State Ind. Acc. in a proper Comm., P2d 891. Or contention that have been could not employees workmen within the statute because they meaning were working contrary contract to what joint under we decided case. 189 Or the McGinnis Pitts See, also, P236 475. Crane, 114 Or v. next defendant

The contends that there is no he “wilfully” that refused to evidence the pay men This stated as of was one the wages. their grounds of directed verdict, motion the obviously the the could not have allowed motion on that ground court plaintiff’s cause only portion goes the to a since it from the to withdraw motion There was no of action. penalty. question Such jury aof the consideration the necessary to reserve in order been have a motion would by have, We this court. for consideration the ourselves content and will it, considered nevertheless, judge the trial stating that conclusion our with jury determination properly the the submitted pay or otherwise. was wilful failure to the whether meaning in the statute is “wilful” the term The App correctly 2d 269, Morris, Cal in Davis stated P2d excepted assigns error, and to, The defendant by jury giving which the were anof instruction assignors plaintiff and his effect, in told, duty perform in work the same under were prudent person and would that a reasonable manner performed same or similar circum under the have it was erron that the instruction It is contended stances. they loggers represented that were eous because But this was one of the in kind of work. skilled presumably be in and would evidence, circumstances jury determining into consideration taken requisite performed with work whether degree care skill.

Finally, urged that the court erred with jury drawing the de from the consideration separate further and answer fourth fendant’s By pleading sought this defendant counterclaim. being three $2250.00, the sum of times recover defendant claimed the trees the two which value of damaged. authority loggers felled without damages are claimed authorized ORS thus treble person from a who, without recovered to be 105.810 wilfully any authority, down tree. Without cuts lawful determining plaintiff suggests, whether, as the statute inapplicable falling an unauthorized of trees in circumstances such as exist in case, this think we say prejudice sufficient to that no defendant ruling resulted from the because the issue as to whether contrary trees in were felled by of the instructions defendant was made the second separate further and answer counterclaim in which sought recovery defendant alleged $750.00, value jury trees, and that issue was submitted to the proper in a jury instruction. necessarily If, as the found, the defendant was not entitled to recover from plaintiff the actual value of the trees, fortiori, he was not entitled to recover three times their value. Gross-Appeal

Plaintiff's jury The court instructed if the de wilfully pay plaintiff fendant failed to as his signors wages compensation, though their financially “plaintiff able to do then so, is entitled to recover for assignors period himself and his for a not to exceed 30 days, equal they and in an amount to what earned in the period immediately preceding the termination em ployment per day by way not at to exceed $19.80 penalty days.” (Italics of a for more than added.) jury plaintiff found their verdict that wages, was entitled to recover the sum $356.34 penalty Upon and fixed the amount of at $891.00. motion for penalty trial new the court reduced the judgment $356.34, exact amount of the wages. Judgment accordingly, was entered and the plaintiff cross-appealed judgment has from the penalty as so fixed the court. ruling proceeds

Plaintiff upon contends that interpretation an erroneous of the statute. OES 652.- an failure to pay a wilful that upon 150 provides for such “as penalty when due, his employee wages em- of such or compensation the wages nonpayment, at the date the due thereof shall continue from ploye commenced; until or until action is rate paid same wages continue in no case shall such provided that think that statute for than We the days.” more time that a man it The says. length means what amount employer for a the worked particular has amount of the on the earned, have no bearing he has be consider these may necessary as it penalty except the rate at which he was in order to determine factors for requires construction, The no really statute paid. for the continuance of it the work- provides plainly or for a period man’s not to ex- wages compensation at he at the same rate which days being ceed 30 was he for working. If, was a man paid example, while at a days wage day, per penalty $5.00 works that day every day would be per payment $5.00 and would continue for 30 withheld, days if the wages unpaid, then unless action are was commenced before of 30 has If the man days works period elapsed. at one that rate would day be only penalty exactly however, Where, the same. he does what is in the work, here, nature of and is not a fixed piece paid but is on the weekly wage basis of the daily paid done, of work order quantity then, apply arrive at necessary statute becomes rate per This trial judge did in that by computation. day told the of his instruction which jury part day. should not exceed sum per This penalty $19.80 at dividing was arrived the amount by evidently the number of six, $356.34, by days during earned continued, and then—on the which the work theory a third of several—taking was the quotient the contract penalty as the amount of the each which of the three men part would be entitled to recover. But the penalty instruction which further limited the to “an equal they period amount to what earned in the imme- diately preceding employment” the termination of the already given. erroneous, the reasons support defendant relies as for the instruction on the following penalty dictum in the McGinnis case, “The recovery employee is not the amount which the seem- ingly employment would have earned had his con- equal tinued, but is to the amount he earned in the period immediately preceding the cessation of his em- ployment.” part Or The latter of this state- happened ment to be true under the facts of the case, McGinnis but it cannot be followed aas rule since, as we have said, the statute does not mean that penalty tois be determined the amount which employee pay earned, the rate of at which he worked. jury

The sum of at which the $891.00 fixed penalty exactly penalty is half of the claimed in the complaint, jury to-wit, It is $1782.00. evident that did not follow instruction of the court on the sub ject, simply took the law into their own hands opinion a sum which in their just allowed seemed to be equitable. right setting The court was aside the jury’s penalty, determination of the but erred in mak ing by wages determination its own measured wage computed earned. The rate of should be at $59.39, making penalty period days the total for a of 30 dispute of There is no sum in the $1781.70. evidence employment as to the terms of the or the number of days jury ques The verdict of the worked. settled the loggers tion of the amount to which the were entitled compensation. as Ascertainment of the amount of the mere matter of mathematical then becomes penalty this to determine we are able Since computation. tried any by jury, fact re-examining amount without modified so be the Circuit Court will judgment in the amount of $1781.70 penalty as to provide Constitution, YU, § Art. Oregon instead $856.34. affirmed. judgment so modified As dissenting. Warner, J.,C. is a close I

Although appreciate kind a contract of of the employment I one, believe as establishes majority opinion described in the and independent of law the status employer matter for the contrary of the proponents contractor. Some have majority opinion, thought, expressed the relationship employer independ- urged and his have deprived Nordling contractor would ent situated, similarly privi- and others coworkers, Compensation Act. the Workmen’s accorded leges in error. course, OES 656.128. is, Such conclusion Rehearing Petition On Erwin, Portland, Keane £ Barzee, Leedy, for the motion. Swink, Lezak Portland. On the brief

Bailey, Portland. and Pozzi, Peterson were Justice, Chief Before Brand Lusk, Warner, Justices. Latourette, J. LUSK, in a petition

Defendant contends rehearing violates the guaranty our decision right to a

339 of Article VII jury the first sentence in trial found reads: which § Constitution, 3 of the State in the value contro- law, at where “In actions right twenty versy by jury of trial dollars, the exceed shall by a preserved, tried and no fact shall be any in court jury otherwise re-examined shall be affirmatively can unless the court State, of this support say verdict.” the is no evidence to there contrary finding of the is asserted the that, It hiring jury, was that the contract of determined we judge joint that the trial It is true and not several. jury plaintiff recover could not instructed the agreements employment separate the with unless assignors proved. plaintiff had been and each of his the both under instruction, this an erroneous But was complaint Defendant’s counsel con and the evidence. urged argument in Court, tended the Circuit joint proof contract, showed a we that the here, agreed. argued complaint alleged They also that the compelled there contract, we were several but authority disagree Keen, the 189 on McGinnis 221 to sus circumstances, P2d 907. In these Or tain is not to re-examine “otherwise” the verdict jury, by at the is to arrive the same fact found jury, though somewhat ultimate conclusion the right route. There is no violation of different process, respect by jury for, in that with trial joint only contract several issue was whether affirmatively possible, and it can be conclusion was one support finding no evidence to said that there was the contract was several. applying urged in not that we erred It is also theory appeal parties on restricts rule which trial court. This contention based in the of the case plaintiff upon that in the Circuit Court the fact to have claimed that appears contract alleged was complaint several, whereas in this conrt he conceded that joint. was The rule invoked thus stated in Edwards, defendant Guardian v. Hoevet, 284, 297, Or P2d 955, ALR2d 104: court is a court

“This of review. can not We sustain verdicts findings upon conceptions which facts the disfavored party never had an A opportunity contesting. familiar rule of ap- restricts the pellate practice appellant to the theory in he the trial court. pursued He can not in this court raise issues that he did not and present rely in the court”. upon circuit In Stotts v. Johnson and Marshall, 403, 420, Or P2d 235 P2d we said that this rule “pre- vents the and appellant the respondent alike from out reaching upon appeal for views the concerning facts and the issues which are inconsistent with different from those which the took in party the trial court. The rule an recognizes that appellate court a court of review and thus the of operation the rule the restricts scope review.” The Edwards case an furnishes illustration apt proper application the rule. The plaintiff sued on an stated account the jury returned a verdict in his favor. The Circuit Court entered judgment the defendant the verdict notwithstanding and the and in plaintiff appealed, this court to sustain sought the verdict on the theory, of an not account stated, re-, of a but to promise the debt of pay another. In heed to this fusing give contention we said at p. 298:

“Were we to from depart the theory upon which this cause was tried in the circuit court and rein- state the under verdict, a belief that the appellant was entitled to as the in prevail party whose favor the made a respondent promise, it be that may we respondent thereby deprive of defenses the would complaint interposed had been the have he would theory.” upon the embraced framed such situation in this case. no course, There is, plaintiff claimed the Circuit Court Had the joint instead of several the result, was the contract interpretation proper and a of the evidence under have been no different. of the would law, view correct for a new trial and should the cause to remand Were we judge be same as would before, evidence jury required the contract instruct the was be jury joint, could find that that, nevertheless, employer employee relationship that of independent prejudice contractor. No that of plaintiff’s defendant has resulted from the affirming change position, and this court, judgment, kept within the set for has well bounds plaintiff adhered to a court of review. Had the respecting took which he on trial effect view duty have been our it still would evidence, correctly judgment affirm law and to declare the notwithstanding the error in the instructions, we judgment only are admonished statute to reverse substantially affecting rights “for errors appellant”. 19.120. ORS again joint argues defendant contract

The part performance of a for of services members joint nership or adventure cannot be a contract of authority employment. We held that it could be on the supra; v. Keen, our own decisions: McGinnis of two of P Crane, 593, 114 Or 236 475. in a Plaintiff, Pitts petition rehearing, in for filed answer calls brief Fig case of Case v. Kadota attention to the Ass'n of (Cal App) P2d 94, 207 affirmed 35 Producers, 86, 95, 342 in

Cal2d 220 P2d 596, 912, which the District Court Appeals said with to a similar contention: reference ‘‘ by appellants, agree fact, stressed that the respect ment with to their services not made Swayne individually with partnership with their Case partnership and that the was to receive compensation does not exclude the existence employment an if relation, even we should consider respect partnership entity separate in this from the individual members. An anas

employer can employee lend the hire an at least another, with employee’s an em be consent, there will ployment general employer, relation with special employer depending has or both on who employee. control and direction of the Industrial Indemnity Exch. v. Industrial Acc. Comm., Cal. seq. et the bor 926, 2d P.2d Whether 130, 134, 156 pays employee directly or reimburses the rower Compare 16 959; lender is not decisive. Independence Cal. Jur Indemnity Industrial Acc. Co. v. Although P. 757. those Comm., Cal. liability questions up respect a rule in as come compensation, principles apply workmen’s Master C.J.S., also outside field. See p. § in Servant seem that the same It would provide partnership contract to manner can labor of its members either under consent, with their party the the control and direction of the whom independently. here, work is done or If, party receiving the control and direc services takes employer-employee an tion there is relation with payments individual fact that the workers. The Case-Swayne check were made to the order of Company pur and booked an account ‘Services Management seems accord with chased, contract,’ the manner in which the contract was drawn and separate significance. That no deduction without security, can tax, made, for income social etc. were against employment an not be conclusive relation special circumstances, under the where the unusual de- caused the the contract set up to be ductions problematic.” that members of are not convinced crew of

We not a tract of are to be timber, hired to log loggers, recover entitled to the penalty as employees regarded 652.150, wages ORS pay prescribed for failure were hired they jointly. because simply matters urged by petitioner, but, are Other reiteration of arguments previously are either they on the only remotely legal ques- considered or bear tions out of the issues this do arising case, they call for comment. special is denied. rehearing petition

Case Details

Case Name: Nordling v. Johnston

Court Name: Oregon Supreme Court

Date Published: May 18, 1955

Citation: 283 P.2d 994

Court Abbreviation: Or.