Diaz v. Coyle

953 P.2d 773, 152 Or. App. 250, 1998 Ore. App. LEXIS 55

• Court: Court of Appeals of Oregon
• Decided: January 28, 1998
• Docket: 94-10-396; CA A91149
• Status: Published

Opinions

EDMONDS, J.

In this negligence action, plaintiff alleged that defendant’s dog killed his livestock.¹ Defendant admitted liability, and a trial was held to establish plaintiffs damages. The jury awarded $6,950, but the trial court entered judgment for $13,900 pursuant to ORS 609.140(1), or double the amount found by the jury. Defendant objects to the amount of the judgment on the ground that the double damage provision in ORS 609.140(1) is a penalty provision subject to a three-year statute of limitations under ORS 12.100(2).² Because plaintiffs action was filed more than three years after his livestock was killed, defendant contends that ORS 12.100(2) bars recovery of double damages. We affirm.

The facts are not in dispute. Plaintiff filed a complaint in October 1994 alleging that in June 1991, defendant’s dog killed plaintiffs livestock. ORS 609.140(1) provides:

“The owner of any livestock which has been damaged by being injured, chased, wounded or killed by any dog shall have a cause of action against the owner of such dog for the damages resulting therefrom, including double the value of any livestock killed and double the amount of any damage to the livestock.” (Emphasis supplied.)

ORS 12.100(2) provides,

“An action upon a statute for penalty or forfeiture, where ' the action is given to the party aggrieved, or to such party and the state, excepting those actions mentioned in ORS 12.110, shall be commenced within three years.”

The issue is to determine whether the legislature intended the double damages provision in ORS 609.140(1) to be compensatory or punitive in nature. We turn first to the text and context of the statute and focus on the phrase, “including double the value of any livestock killed and double the amount of any damage to the livestock.” The word “including” in a statute can indicate different meanings. First, it could connote an expansion of the word it modifies. Premier Products Co. v. Cameron, 240 Or 123, 125, 400 P2d 227 (1965). It can also describe “those things that are contained in or embraced by the term.” State v. Haynes, 149 Or App 73, 76, 942 P2d 295 (1997). Here, the word “including” modifies the word “damages.” The word “damages” is a generic word. It could connote compensatory damages that are intended to make the injured party whole or penalties that are intended to punish or deter a wrongdoer. If the word “including” in the context of ORS 609.140(1) connotes an expansion of damages beyond compensatory damages, then the statute provides for a penalty that falls within the purview of ORS 12.100(2). On the other hand, if the word “including” connotes an illustration of the kind of compensatory damages that are embraced by the word “damages,” then the statute does not provide for a penalty, and plaintiffs double recovery is not barred by ORS 12.100(2).

In context with ORS chapter 609, the double damages provision in ORS 609.140(1) suggests that the legislature may have intended that the damages be compensatory in nature. “Double damages” were first made a part of ORS 609.140 in 1973. Or Laws 1973, ch 655, § 7. The current “double damages” language was enacted in 1975. Or Laws 1975, ch 749, § 1. At that time, ORS 609.100 provided that a county governing body, in setting fees for dog licenses, was authorized to “prescribe a penalty in an additional sum” in the event that a license was not procured on time. Also, ORS 609.060(3) provided for the imposition of a “penalty” for negligently permitting a dog to run at large in a dog control district. Those statutes demonstrate that, at the time that the legislature adopted the current version of ORS 609.140(1), it knew how to promulgate penalties and chose not to use that language in ORS 609.140(1).

This is not the first time that appellate courts in Oregon have wrestled with the issue of whether a double damage provision in a statute is compensatory or provides for a penalty. In Kinzua Lbr. Co. v. Daggett et al, 203 Or 585, 606-07, 281 P2d 221 (1955), the court held that a státute that awarded double damages for timber trespass was compensatory in nature. It reasoned that the legislature intended to afford an adequate measure of damages for an injury for which it was difficult to ascertain what amount of compensation would make the injured party whole. Conversely, in Nordling v Johnston, 205 Or 315, 326-27, 283 P2d 994, 287 P2d 420 (1955), the court distinguished its holding in Kinzua, observing that the wage claim statute in that case expressly provided for a penalty amount of up to 30 days of wages in addition to the amount of wages earned and due.

Moreover, reference to the changes made to the statute in 1975 and the underlying legislative history removes any doubt that what is suggested by the statutory context is, in fact, what the legislature intended it to mean. The following changes were made by the 1975 amendments to ORS 609.140(1) (additions are in boldface while deletions are in brackets):

“The owner of any livestock which has been damaged by being injured, chased, wounded or killed by any dog shall have a cause of action against the owner of such dog for [idouble the amount of the damage] the damages resulting therefrom, including double the value of any livestock killed and double the amount of any damage to the livestock.” Or Laws 1975, ch 749, § 1.

The effect of the 1975 amendment regarding damages was to change the statute from a statute that provided a double recovery for all damages to a statute that provided only a double recovery for the value of the animal. Thus, expenses for medicine or veterinary care would no longer be subject to duplication under the current statute. The change is evidence that the legislature recognized the inappropriateness of a double recovery for liquidated or ascertainable expenses.

The legislative history underlying the amendment shows the following. Representative Stults and Senator Elizabeth Brown sponsored new legislation that was intended originally to amend ORS 609.140 by adding what would later become ORS 609.140(2). See Or Laws 1975, ch 749, § 1. While the new legislation was in committee, R.C. Owens, who represented sheep ranchers and livestock owners in Douglas and Lane County, proposed additional provisions to the amendment. He also presented a memorandum in support of the additions. See Memorandum in Support and Explanation of Proposed Amendments to ORS 609.140, House Judiciary Committee, April 10,1975, Ex A. Representative Kulongoski undertook to add Owens’ proposal to the bill and explained to the House Judiciary Committee that he believed that the addition should be incorporated into the new legislation and that he agreed that the memorandum explained the effect of the addition. Tape Recording, House Judiciary Committee, April 10,1975, Tape 13, Side 1 at 1552. He then read parts of the memorandum to the other committee members and distributed a copy to each member.

The memorandum prepared by Owens stated:

“3. ‘Double damages’ is a most appropriate measure in cases of this sort where the per-incident damage may be low and the inconvenience and expense of locating the owner and gaining compensation considerable.”

Owens’ memorandum also sums up what the state of the law would be after the proposed change:

“As a result of these changes, the Oregon Legislature will have gone a long way in protecting livestock owners in a comprehensive and fair manner. Operation of such a statute should give ranchers a much better chance of obtaining adequate compensation for their losses from dog-caused damage. Additionally, they would clarify an area of law, characterized by confusion, which would enhance the prospects for uniformity and predictability.” (Emphasis supplied.)

A discussion by the House Judiciary Committee subsequently ensued about the memorandum and Owens’ proposed additions. Tape Recording, House Judiciary Committee, April 10, 1975, Tape 13, Side 1 at 1552-1605; Tape Recording, House Judiciary Committee, April 23,1975, Tape 17, Side 1 at 842-1200. The testimony before the committee and the comments of the legislators during those discussions do not reveal any dispute with the assertions made in the memorandum. Significantly, a discussion of “penalties” does not appear in the minutes of those hearings.³ The measure of damages was discussed by the committee in terms of compensating owners of killed and injured livestock, and the committee concluded that it was more appropriate to double only the lost value of the livestock. Owens then drafted a different amendment to reflect the committee’s discussion that had been based on the memorandum. Subsequently, the proposed bill was passed out of committee incorporating the language drafted by Owens and was approved by the legislature.

The dissent criticizes our use of the 1975 legislative history underlying ORS 609.140(1) and argues that only the 1973 legislative history is relevant. Before 1973, the statute provided for “full” damages for injured or killed livestock. In 1973, HB 2975 was introduced in the House Judiciary Committee, which proposed to changed the statute to provide for “double damages.” Also, HB 2783, of which Representative Patterson was a sponsor, was introduced in the House Agriculture and Natural Resources Committee about the same time. It proposed to change the amounts for fines for violation of licensing requirements. The dissent relies on statements made by Judge Claude Hall, a witness before the House Agriculture and Natural Resources Committee, and Patterson in support of its position that the 1973 legislative history is controlling. Its reliance on Hall’s statement is misplaced because his statement was made in reference to HB 2783 at a time when its provisions did not incorporate HB 2975 or change the existing statute as to the measure of damages. Hall’s testimony was not and could not have been about, the double damage provision proposed in HB 2975.

Additionally, Patterson’s statement, in context, is not indicative of the intent of the entire legislature. While the bills were in committee, there was a successful motion to combine HB 2975 with HB 2783 by Representative Magruder, and, thereafter, HB 2783, which later became amended ORS 609.140(1), contained the “double” damage language. Minutes, House Committee on Agriculture & Natural Resources, April 27,1973, p 9. There was no discussion at the time as to why the committee added the “double” damage language. Patterson was designated to carry the bill to the Senate Agriculture and Natural Resources Committee.

In the Senate Agriculture and Natural Resources Committee, a motion was made by Senator Ouderkirk to reinstate the word “full” into the bill. Minutes, Senate Committee on Agriculture & Natural Resources, June 13, 1973, p 2. Patterson objected, and it is his statement made in objection to the amendment on which the dissent also relies. The motion to amend subsequently failed, id. at 4, and the bill was ultimately passed out of the Senate Committee. Patterson’s statement is at best a personal reaction to a proposed amendment to HB 2783. Because there is no record that the House Agriculture and Natural Resources Committee ever discussed the reason for adding the double damages provision from HB 2975 to HB 2783, his statement cannot be interpreted as speaking for the House Agriculture and Natural Resources Committee, nor can it be interpreted as the intent of the entire legislature regarding what the legislature intended by the “double” damage provision.

Beyond those two statements, the 1973 legislative history is uninformative about what the legislature intended regarding whether the “double” damages provision was meant to be compensatory. Whatever was intended by the 1973 legislature, the 1975 legislature dealt specifically with the double damage provision and its understanding of the words that it used in 1975 and which remain in effect, are instructive. See Gaston v. Parsons, 318 Or 247, 254, 864 P2d 1319 (1994) (the legislature’s understanding of the word at the time that statute was adopted is dispositive, unless subsequent amendments have altered that meaning).

In sum, our review of the text, context and legislative history of the statute persuades us that the legislature intended the double damage provision in ORS 609.140(1) to be compensatory rather than punitive in nature. Accordingly, ORS 12.100(2) is inapplicable, and the trial court did not err.

Affirmed.

1 The livestock consisted of three purebred roosters, twelve purebred hens, thirty chicks and sixty fertile eggs.

2 Defendant does not argue on appeal that the entire action is subject to the three-year statute of limitations. He objects only to the award of double damages.

3 The court in Nordling thought it persuasive about legislative intent that in Kinzua, recovery could be had for a nonwillful act where there was difficulty in proving actual damages and the statute used the word "damages," whereas the wage claim statute used the word "penalty." Nordling, 205 Or at 327.