Gray v. Hammond Lumber Co. , 113 Or. 570 ( 1924 )

Rehearing denied February 24, 1925. ON PETITION FOR REHEARING. (233 P. 561.) For the petition, Messrs. Goss Murphy and Mr. Arthur K.McMahan. Contra, Messrs. Kaste Rand.

BROWN, Judge.

This action is maintained under the provisions of the Employers' Liability Law (Or. L., §§ 6785-6791). Plaintiff herein was the mother of Harold Gray, a boy seventeen years of age, who, on the second day after entering the employment of the defendant Hammond Lumber Company, was killed while engaged in the course of his employment at a logging camp operated by that company. The plaintiff prosecuted the action against the Hammond Lumber Company, a corporation, and W.S. Lukins, its foreman. The defendant corporation filed a general demurrer to the complaint, which was overruled. Thereupon, it filed an answer to the merits. Plaintiff replied, and on trial secured a judgment against both defendants. Upon appeal, the case was reversed as to Lukins and affirmed as against the corporation (opinion filed January 20, 1925).

The defendant Hammond Lumber Company has filed a petition for rehearing, on the ground that this court erred in holding to be sufficient plaintiff's pleading, which failed to aver directly the nonexistence of certain preferred beneficiaries, and which left these essential facts to be inferred from the alleged youthfulness of the deceased. This specific objection is made in this court for the first time.

It is a well-established rule of law in this jurisdiction that, upon the defendant's answering over, the complaint is to be construed most strongly in favor of the plaintiff, and will be sustained if it states a good cause of action, although the cause of action be stated defectively:Hughes v. McCullough, 39 Or. 372, 375 (65 P. 85); Dippold v. Cathlamet Timber Co., 98 Or. 183 (193 P. 909), and local citations. The objection that the complaint fails to state a cause of action may be taken in this court for the first time. This proposition is sustained by the Code and many local citations under Section 72 thereof.

The amended complaint in the instant case avers:

"That at the time of his death, decedent was seventeen years of age."

From the evidence adduced at the trial to the court without a jury, the court found that the boy was unmarried. In effect this finding has the force of a verdict by jury.

Section 6788 of the Employers' Liability Law reads:

"If there shall be any loss of life by reason of the neglects or failures or violations of the provisions of this act by * * any person liable under the provisions of this act, the widow of the person so killed, his lineal heirs or adopted children, or the husband, mother, or father, as the case may be, shall have a right of action. * *"

In our former opinion, we quoted with approval the following from Tiffany, Death by Wrongful Act (2 ed.), § 182:

"If the act gives a right of action, first to a designated class of beneficiaries, and, if there be none of that class then to another class, in an action on behalf of beneficiaries of the latter class, the nonexistence of beneficiaries of the first class must be averred."

That is a fair statement of the law as we then understood and now understand it.

The complaint does not directly negative that Harold Gray left surviving him a widow, lineal heirs, or adopted children. However, after verdict, this pleading must be held to allege all the facts that can be implied by a fair and reasonable intendment from the facts expressly stated: Pomeroy's Code Remedies (4 ed.), p. 592.

"Contrary to the common-law rule, every reasonable intendment and presumption is to be made in favor of the pleading." Pomeroy's Code Remedies (4 ed.), § 441.

And facts necessarily implied need not be alleged: Wills, Gould on Pleadings, p. 196.

In cases of this character, the Employers' Liability Act confers the right of action and provides the remedy, and such an action can only be maintained subject to the limitations and conditions therein prescribed. The right of a mother to sue for the wrongful death of her son must rest upon the fact that he was unmarried, and childless, at the time of his death. In our former opinion we held that after verdict a mother's pleading is susceptible of every fair and reasonable intendment in support thereof, and that, under the laws of this state, the inference that a boy of the age of seventeen years is unmarried and childless is reasonable.

The petitioner invokes in its behalf a number of cases from Missouri, which we will review. However, it should be borne in mind that in the state of Missouri common-law marriages are lawful: Dyer v. Brannock, 66 Mo. 391, 418 (27 Am. Rep. 359);State v. Cooper, 103 Mo. 266 (15 S.W. 327); Adair v. Mette,156 Mo. 496 (57 S.W. 551); State v. Hansbrough, 181 Mo. 348 (80 S.W. 900).

In the State of Oregon common-law marriages violate the policy of the state and are unlawful: Huard v. McTeigh, ante,p. 279 (232 P. 658), decided January 27, 1925. Again: No boy under the age of eighteen years is capable of contracting marriage in this state: Or. L., § 9720.

"Such license (marriage) shall not issue without the written consent of the parent and guardian, if there be any, if the female be within the age of eighteen years, or the male within the age of twenty-one years, nor in any case unless the parties are each of an age capable of contracting marriage." Or. L., § 9732.

The case of Czezewzka v. Benton-Bellefontaine Ry. Co.,121 Mo. 201, 212 (25 S.W. 911), was a suit for damages on account of the death of the infant child of plaintiff. The infant was but two years of age. On appeal it was contended that the petition failed to state facts constituting a cause of action because it failed to allege that the two year old child was unmarried. The court held that under the existing statute it was its duty "to distinguish between form and substance," and "to construe the allegations of a pleading liberally." The court overruled defendant's contention, and decided that "it must be held that it was sufficiently alleged that the deceased was unmarried:McIntosh v. Railroad, 103 Mo. 131."

In the case of Baird v. Citizens' Ry. Co., 146 Mo. 265 (48 S.W. 78), the plaintiff filed her petition alleging the negligent killing of her minor son of the age of six years. On appeal to the Supreme Court, the defendant contended that, in order for the petition to state a cause of action, it must allege that the minor "died unmarried," and that, because it failed so to state, it alleged no cause of action. The court held that a six year old child was incapable of entering into contract of marriage; that, in view of the Code rules requiring a liberal construction of pleadings, the petition was sufficient, and "it must be held to have been sufficiently alleged that the deceased was unmarried."

The case of Bellamy v. Whitsell, 123 Mo. App. 610, 616 (100 S.W. 514), was an action for damages for the death of plaintiffs' infant son, age thirteen years. On appeal it was urged that the petition was fatally defective, in that it did not aver that the son was unmarried and left no child or children. Among other things, the court said:

"At common law, * * the age of consent in males was fixed at fourteen, in females at twelve years. These were the respective ages at which infants were presumed in law to reach the state of puberty, and when they entered that state they were deemed to be qualified to consent to marriage."

The opinion then states, in reference to the provisions of "Section 4311" of the laws of Missouri:

"It (Section 4311) declared, in effect, that no contract of marriage should be valid unless it be supported by the consent of parties capable in law of making it, that is, by a male over the age of fourteen and a female over the age of twelve years."

The court further held that, because it appeared from the averments of the petition that the boy was under marriageable age as provided by the laws of the State of Missouri, "the presumption will be entertained that the boy was unmarried and it follows that the cause of action should be held to be properly pleaded."

The case of Marshall v. Consolidated Jack Mines Co.,129 Mo. App. 949 (108 S.W. 573), reads (syl.):

"In actions by surviving parents for the death of a minor son, it must be alleged and proved that deceased was unmarried at the time of his death, unless the allegations and proof raise the presumption that such was the fact. * *"

The court there held that —

"No such presumption can be indulged in this case, as the evidence shows that the deceased minor was of the age of consent."

See, also, Dulaney v. Missouri Pac. Ry. Co.,21 Mo. App. 597.

Further review of the Missouri cases is unnecessary, for the reason, as that court points out, that the age of consent of boys in that state is fourteen years, while in Oregon the age is eighteen years.

The facts in the case at bar tend to corroborate the trial court's inference that Harold Gray was unmarried. The testimony shows that he was a schoolboy, seventeen years old, and dwelt with his parents a few miles from Lebanon in Linn County. The testimony of his teacher relates to his regular attendance at school. It is further shown that he was small for his years, but that when vacation time arrived he sought employment in the logging camp of defendant company, to earn money for the purpose of continuing his education.

Every valid judgment is the sequence of a proper pleading. However, neither the defendant corporation nor any other person contends or pretends that the lad Harold Gray left a widow or child. The only matter presented to the court involves a technical question as to plaintiff's pleading. The burden was cast upon the plaintiff to make in her pleading a concise statement of the facts constituting her cause of action against the defendant: Or. L., § 67, par. (2). But, to the end that justice may be established, and not perverted, our Code commands:

"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." Or. L., § 85, and local authorities there cited."

The petition for rehearing is denied.

REHEARING DENIED.

McBRIDE, C.J., and BEAN and COSHOW, JJ., concur.

Objections to cost bill sustained in part March 3, 1925. ON OBJECTIONS TO COST BILL. (234 P. 261.) Messrs. Kaste Rand, for the objections.

Messrs. Goss Murphy and Mr. Arthur K. McMahan, contra. Respondent files objections to the cost bill of appellant W.S. Lukins, as follows:

"First: There is no authority in law for the charge filed for the undertaking, and,

"Second: None of said items of costs or expenses were incurred by defendant Lukins and neither has he obligated himself to pay any part thereof, but on the contrary all of said items of expenditure and costs, and each and every one of them, were paid by the Hammond Lumber Company or else by the Casualty Insurance Company, under which it was operating."

Section 6438, subd. 5, Oregon Laws, reads:

"In all actions and proceedings a party entitled to recover disbursements therein shall be allowed and may tax and recover such sum paid a person or company for executing any bond, recognizance, undertaking, stipulation, or other obligation therein, not exceeding, however, one per cent on the amount of such bond, recognizance, undertaking, stipulation, or other obligation during each year the same has been in force."

This statute authorizes the recovery, as a disbursement, of the premium paid on an appeal bond, limited to 1 per cent on the amount of such bond during each year in force:Fischer v. Bayer et al., 108 Or. 319 (211 P. 162).

A supersedeas bond having been filed covering the amount of the judgment rendered against the appellants jointly, and for costs on appeal, the liability would necessarily be placed at approximately $7,000; and not more than one year having elapsed, the total amount of premium should not exceed $70.

In the case of Fischer v. Bayer et al., supra, it was stated, at page 321:

"The rule is that, where there are several appellants, some of whom are successful, they are entitled to a full bill of costs, less such charges as relate exclusively to appellants who have failed: 15 C.J. 91, 92."

The appellant Lukins filed no separate undertaking, and the abstract and briefs cover the case on behalf of both appellants, so that Lukins is entitled to recover not more than one-half of the disbursements incurred. The costs and disbursements claimed by Lukins should be allowed in part, as follows:

Undertaking on appeal ................... $35.00 Filing fee (1/2) ........................ 5.00 Costs — prevailing party fee ............ 15.00 Printing abstract (1/2) ................. 15.62 Printing brief (1/2) .................... 18.13 Printing reply brief (1/2) .............. 5.00 ______ Total ............................. $93.75

OBJECTIONS SUSTAINED IN PART.