Multnomah County v. Willamette Towing Co.

89 P. 389, 49 Or. 204, 1907 Ore. LEXIS 105

• Court: Oregon Supreme Court
• Decided: March 19, 1907
• Status: Published

Opinion

Mr. Chief Justice Bean

delivered the opinion.

1. It is claimed that it was error to deny plaintiff’s motion to make the second amended answer of the defendants towing company and William Mitchell more definite and certain. • The motion sets out at length the averments which counsel desires' inserted in the pleading and which he says in his brief are “the vital portions of the two former answers, which had been purposely cut out of the secqnd amended answer by the defendants, to try to keep said second amended answer from being demurrable.” Where the allegations of a pleading are so indefinite or uncertain that the precise nature of the charge or defense is not apparent, the court may 'require the pleading to be made more definite by amendment (Section 86, B. & C. Comp.); but this remedy is only applicable when the pleading contains a defective or vague statement of a good cause of action or defense, and is designed to cure such defects as appear upon the face of the pleading itself. It is not the province of the court on such a motion to require the pleader to state the evidence upon which he relies or amend his pleading for the purpose of enabling his adversary to demur: 6 Enc. Pl. & Pr. 275; Johnson v. Wilcox Sewing Machine Co. (C. C.) 25 Fed. 373. The motion here was not directed against vague or uncertain allegations of a pleading, but was to require the defendants to insert therein new and independent allegations prepared and framed by their adversary, and we know of no rule of law authorizing or sanctioning such a practice.

2. There were many questions argued at the hearing based on alleged errors committed during the trial in Multnomah County; but, as the verdict was set aside and a new trial awarded, 'such questions are immaterial on this appeal. The order granting the new trial left the case as though no trial had taken place (Edwards v. Edwards, 22 Ill. 121; Hollenbeck v. City of Marshalltown, 62 Iowa, 21: 17 N. W. 155), and rulings affecting the previous trial become of no consequence.

3. But, it is contended that it was error to set aside the verdict and grant a new trial. The verdict was set aside, and the new trial granted, under Section 174, B. & C. Comp., for insufficiency of the evidence to justify the verdict. It is not only the right but the duty of a trial court, in passing on applications of this kind, to weigh the entire case, and, if in its opinion the verdict is against the clear weight of the testimony, to grant a new trial. The trial judge listens to the evidence, sees the witnesses, notes their .appearance on the witness stand, is familiar with the atmosphere surrounding the case, and therefore has an opportunity to ascertain the merits of the controversy and duly to appreciate the weight and force of every item of evidence, and if, in his judgment, the evidence is insufficient, in point of law or fact, to support the verdict, or the verdict is manifestly unjust and such as reasonable men would not adopt or return, he ought not to hesitate to set it aside and grant a new trial. This question was so thoroughly considered in Serles v. Serles, 35 Or. 289 (57 Pac. 634), that it is sufficient merely to refer to that case.

4. The granting of the new trial was an interlocutory order, involving the merits,'and is reviewable on this appeal.

5. An application for that purpose, however,.is addressed to the sound discretion of the trial court, and its ruling will not be disturbed by an appellate tribunal, when there appears to have been a substantial conflict in the testimony upon the essential facts: 14 Enc. El. & Fr. 962; McCrum v. Corby, 15 Kan. 112. In the very nature of things, the judge who presides at the trial has a better opportunity to form a just estimate of the credibility of witnesses, and the weight to be given their testimony, than an appellate court, which sees only so much of the case as can be reduced to writing. Great reliance must therefore be placed upon his judgment, and, when he approves a verdict and decides that there was sufficient evidence to support it, his decision will rarely be disturbed. Indeed, the records of this court show that such decision almost invariably ends the controversy; and when the trial judge fails to approve the findings of the jury, and orders a new trial for insufficiency of the evidence, this court must, for the same reason, generally, accept that as the proper and logical conclusion.

6. In this case no part of the evidence as given on the trial is embodied in the bill of exceptions. It contains simply a statement of the rendition of the verdict, a copy of the motion for a new trial, a recital that such motion was allowed, and the opinion of the trial judge, without any evidence whatever. It is true there is a statement in the bill that certain documentary evidence designated as exhibits and all the oral, testimony as reported and transcribed by the official stenographer are annexed to and made -a part of the bill of exceptions, and for the purpose of identification are “put in a tin box and locked in, and key and' box and papers delivered to the clerk of the court, with instructions to transmit the same to clerk of supreme court, and all said exhibits included in said box are hereby annexed to said bill of exceptions and made a part thereof.” In fact, however, none of such evidence or exhibits are in any way embodied in, physically attached to, or made a part of, the bill of exceptions, or certified or identified by the trial judge. They are, strictly speaking, no part of the record: State v. Clements, 15 Or. 237 (14 Pac. 410); Noster v. Coos Bay Nav. Co. 40 Or. 305 (63 Pac. 1050).

7. But, waiving this point (although this must not be regarded as a precedent), and looking into what counsel claims to be the testimony, we find the evidence conflicting, but in our opinion preponderating in favor of the defendants. The complaint charges, in substance, that it was negligence for the defendants to attempt to move-the Almond Branch through the harbor of Portland at the then stage of the water with only one towboat, and that they were negligent in the management of the vessel after the voyage was commenced, and such negligence was the proximate cause of the injury to plaintiff’s bridge. If the voyage was negligent, or such as reasonably prudent men, familiar with river navigation, would not have undertaken, and such negligence was the proximate cause of the injury complained of, then all persons controlling or participating in such voyage would be jointly and severally liable, and it would be no defense for one joint tort-feasor that another person was also liable. If, however, the voyage was not negligent, and the accident to the bridge was caused by negligence in the navigation after the voyage was begun, the party or parties so negligent would alone be liable.

8. There was no evidence, so far as we-can ascertain, connecting the lumber company with any of the negligent acts charged. It was the charterer or hirer of the Almond Branch, but did not have command, possession or control of the vessel, so far as its management or navigation were concerned, except to direct where it should receive its cargo. The vessel was under the sole charge and command of the master employed by and who represented the owners, and not the charterers. By the terms of the charter party, the owners agreed to let, and the lumber company to hire, the vessel “with a full complement of officers, seamen, engineers and firemen, and in every way fitted for the service to trade” between such ports as the charterer might direct for a period of from three to nine calendar months at the chartereFs option; the cargo to be taken or discharged at any dock or wharf the charterer might. direct where the vessel could lie safely afloat. The owners agreed to provide and pay for all provisions, the wages of the captain, officers and crew, insurance, engine room stores, and to maintain the vessel in a thoroughly effective state in hull and machinery for service, and that the captain employed by the owner should be under the orders and direction of the charterers as regarded agency and other arrangements, and should prosecute his voyages with the utmost dispatch. The charterer was to< provide and pay for fuel, port charges, expenses of loading, and the like, and 10 shillings per gross ton register per calendar month. Such a charter party is a mere contract of affreightment, and not a demise of the vessel, and the charterer is not liable for the acts and conduct of the officers and crew in the management of the vessel: Grimberg v. Columbia Packers' Assoc. 47 Or. 257 (83 Pac. 194: 114 Am. St. Rep. 927).

9. The witnesses differ as to whether it was want of ordinary prudence to attempt to take a vessel of the size of the Almond Branch through the draw of the Morrison Street Bridge,- at the then stage of the water, with only one towboat. Capt. Spencer and one-or two other witnesses for the plaintiff say that it was not safe to do so. Capts. Pease, Bailey, Snow and Conway say that there is a difference of opinion among river-men on the subject, some pilots using one towboat, and some two>. Capts. Emken, Patterson and Pope testify that in their opinion one towboat was sufficient, and that an ordinarily prudent pilot would attempt the voyage with but one boat. It thus appears that there was a conflict in the testimony upo-n the question as to whether the voyage itself was negligent, but the evidence was not so clearly in plaintiff’s favor that the conclusion of the trial court on the motion for a new trial will be disturbed; and, if the voyage was not negligent, there was no evidence of any negligence of the towing company or of Capt. Mitchell contributing to the injury complained of.

10. The Yulcan, of which Mitchell was captain, and which belonged to the towing company, was not furnishing the power for or towing the Almond Branch at the time of the accident, but was lashed to her for steering purposes only. The Almond Branch was proceeding under her own steam, but as she was a propellor, and could not steer herself while backing, the Vulcan was lashed to her by direction of those in charge for that purpose. The Vulcan and her captain were under orders from the bridge of the Almond Branch, and there is no evidence that such orders were not strictly obeyed, or that any act of omission or commission of the Vulcan or her captain in any way contributed to the injury to plaintiff’s bridge, unless it was in participating in a negligent voyage. The defendant Emken was the pilot of the Almond Branch, and the testimony of himself and the witness Lewis, who was on the vessel, was to the effect that, while .she was passing through the draw, her master, who was in command, without direction from the pilot, and without his knowledge, gave an order to the engine room to go full speed ahead, without communicating that fact to the Vulcan, which was backing, the result of which was to cause the Almond Branch to swing to port and foul the bridge. This testimony is undisputed, and it is but a fair inference from it that the proximate cause of the injury was the act of the master referred to, and not the negligence of any of the defendants to the present action. Upon such a record the court was clearly justified in setting aside the verdict and granting a new trial.

Counsel argues, however, that evidence of the negligence of the master was not competent under the pleadings, • and cites authorities which seem to hold that in collision cases the defendant cannot rely on a general denial, but must set up by way of answer the circumstances relating to the collision: The Why Not, L. B. 2 Adm. & Eec. 265; The Washington Irving, Abb. Adm. 336 (Fed. Cas. No. 17,243). But the cases referred to were in admiralty, and, whatever the proper rule may be in such proceedings, it can have no application here. This is an ordinary action for negligence, and in such case it is competent, under a general denial, for the defendant to show that the acts upon which it is based were done by other persons for whose negligence it was not liable: 14 Enc. PI. & Pr. 344; Bradner, Evidence (2 ed.), 46. Thus, in an action to recover for an injury to plaintiff’s house, caused by negligent blasting, the defendant was permitted to show under general denial that the blasting was done by an independent contractor over whom he had no control: Roemer v. Striker, 142 N. Y. 134 (36 N. E. 808).

11. The rule is that any fact which in effect admits the cause of action set out in the complaint, but attempts to avoid its force and effect, must be affirmatively pleaded; but evidence which merely controverts facts necessary 'to be proved by the plaintiff to authorize a recovery must be shown under the denials: Buchtel v. Evans, 21 Or. 309 (26 Pac. 67); Duff v. Willamette Steel Works, 45 Or. 479 (78 Pac. 363: 17 Am. Neg. Rep. 121). The averment that the injury to plaintiff’s bridge was due to the negligence of defendants was put in issue by the answer, and they were therefore entitled to show affirmatively under their denials that they exercised due care, and that the injury arose from some other cause, such as the act of some, person for whom they were not responsible: Hunter v. Grande Ronde Lum. Co. 39 Or. 448 (65 Pac. 598). Nor were they deprived of this right because the answers as filed set up other reasons for the accident. The complaint and answers made an issue upon the question of negligence. The burden of proof was upon the plaintiff to show the negligence charged, either directly or by inference, and any testimony which would tend to controvert the plaintiff’s case was competent under the denials. Nor was the question concluded by the ruling of the trial court sustaining the demurrer to a former answer, which set up that the master of the Almond Branch was responsible for the accident. That fact was alleged among other matters and the demurrer may have been,' and probably was, sustained on the ground that the matter pleaded, so far as material, would be competent evidence under a general denial. We are therefore of 'the opinion that the ruling of the court below granting a new trial should not be disturbed on this appeal.

12. After the verdict had been set aside and the new trial granted, defendants moved for a change of venue, supporting their motion by affidavit to the effect that the inhabitants of Multnomah County, from the taxpayers of which a jury to try the case must be drawn, were so prejudiced against the defendants by reason of their financial interests as taxpayers that a fair and impartial trial could not be had in the county, and because any taxpayer would, when called as a juror, be subject to challenge for implied bias by either 'party to the litigation. The motion was allowed, and the place of trial changed to Clackamas County, and this ruling is assigned as error. The right to change the place of trial of an action rests in the sound discretion of the trial court, and its ruling in granting or refusing an application for that purpose will not be disturbed on appeal, unless there is a clear abuse of discretion (State v. Humphreys, 43 Or. 44, 55: 70 Pac. 824; State v. Armstrong, 43 Or. 207: 73 Pac. 1022), and there was no such abuse in this case.

13. Under the law a taxpayer of Multnomah County could have been successfully challenged for implied bias by either of the litigants (Ford v. Umatilla County, 15 Or. 313: 16 Pac. 33), and thus it would.have been difficult, if not impossible, to secure a jury in that county.

14. The plaintiff contends, however, that the defendants were estopped from insisting on a change of the place of trial on account of the financial interest of the jurors because of an agreement made before the first trial to waive the right of challenge on that account. It appears that, before the first trial, the presiding judge notified counsel that, unless they could agree upon some satisfactory plan to limit the challenges to jurors for implied bias because they were taxpayers, he would, on his own motion, change the place of trial. In order to avoid such change, counsel orally stipulated in open court that they would select the jury from the then jury list of the county, and would waive the right to challenge any of the jurors so selected for implied bias. This agreement, however, evidently related to the trial then about to take place, and was not intended to apply to future trials.

There are 36 assignments of error, based upon rulings made during the progress of the trial in Clackamas County. Many of these present the same question in different forms, and others have already been disposed of. We shall not attempt to notice the several assignments in detail, but will briefly consider the general questions, involved.

15. Mr. Wheelwright’s testimony as to how Mr. Lewis happened to be on board the Almond Branch at the time of the accident was competent. The plaintiff charged and attempted to show that the Pacific Export Lumber Co., of which Wheelwright was the manager, was a party to and participated in the alleged negligent navigation. Lewis was an employe of the lumber company and superintended the outside work of loading vessels. His being on the Almond Branch, if unexplained, might raise an inference that the lumber company was in some way participating in or directing the navigation of the vessel, and Wheelwright's testimony that he was not there as a representative of the company, but for his own convenience, would tend to repel such inference.

16. The testimony of Capt. Emken as to what the master of the Almond Branch said at the time or immediately after giving the order to the engineer to go full speed ahead was competenc as part of the res. gestae, characterizing and explaining his act.

17. The testimony of Lewis that from his experience in the harbor of Portland, and knowledge of the. river currents, and what he saw from the bridge of the Almond Branch, the vessels were proceeding safely through the draw at the time the alleged order' of the master was given to go full speed ahead, and without such order the vessels would not have collided with the bridge, was, we think, competent. Lewis had been “on the water all his life,” had passed through the draw 20 or 30 times on board vessels at' all stages of the water, had watched their navigation, and was familiar with the facts in the present case, and therefore competent to testify, from what he saw from the bridge oE the Almond Branch and from his general knowledge of the river and navigation, whether the vessels were passing safely through the draw at the time alluded to. His testimony was not wholly that of an expert nor opinion evidence. It was based in part upon what he saw at the time, much of which it would be difficult correctly to state or detail so as to be fully understood by the jury: First Nat. Bank v. Fire Association, 33 Or. 172 (53 Pac. 8).

18. His qualification to express an opinion on the subject was a question of fact for the trial judge, and his finding will not be disturbed except in case of an abuse of discretion: Oregon Pottery Co. v. Kern, 30 Or. 328 (47 Pac. 917); First Nat. Bank v. Fire Association, 33 Or. 172 (53 Pac. 8); Farmers’ Nat. Bank v. Woodell, 38 Or. 294, 300 (61 Pac. 837); Aldrich v. Columbia Ry. Co. 39 Or. 263 (64 Pac. 455).

19. There was no error in sustaining an objection to the question asked Lewis on cross-examination concerning the averments in the amended answer of the defendant lumber company. Lewis was not an officer of the company. The answer was not prepared by him or under his direction. It was not verified by him, nor was he in any way responsible for its contents; and furthermore, he was not interrogated about the matter on his direct examination.

20. The testimony of Wheelwright, the manager of the lumber company, that the officers of the company had nothing to do with the navigation of the Almond Branch, and his orders to the master to take his vessel from a dock south of the Morrison Street Bridge to one north thereof were not given on the day the attempt was made to move the vessel, was clearly competent.•The plaintiff charged the lumber company with participation in the negligent navigation of the vessel, and this evidence was competent as tending to disprove such charge.

21. While Wheelwright was on the stand, he was asked on cross-examination, if he verified the first answer of the lumber company, and, his reply being in the affirmative, an offer was made to read to the jury the statement of the cause of the accident as contained in such answer. The objection was sustained, we think properly, on the ground that the plaintiff had closed its case, and, if'the reading of the answer was competent at all, it was evidence in chief and should have been offered at the proper time.

22. There was no error in refusing to admit in evidence, by way of rebuttal, an award made by arbitrators in England of a controversy between the owners of the Almond Branch and the defendant lumber company, and the confirmation of such award by the Court of King’s Bench. The parties to- the submission are not the parties to this action, nor did the matter of the award cover the subject now in controversy. The question there in dispute was whether the Almond Branch was off hire, within the meaning of the charter party, during the time she was afoul the bridge and aground in the river, and an adjudication of this question could have no bearing upon the present action.

23. At the close of the testimony, the plaintiff moved for a directed verdict, and the overruling of this motion is assigned as error. This motion was based on the contention that defendants had not overcome the prima facie case made by plaintiff; but that was a question o-f fact for the jury, and not the court. There was abundant evidence tending to show that defendants were not responsible for the accident to plaintiff’s bridge.- The credibility of the witnesses, the effect of contradictory and inconsistent statements, and the weight to be given to their testimony, were not questions which could be disposed of on motion for a directed verdict.

The remaining assignments of error need not be specially noticed. In our opinion they are without merit. All the essential features of the'requested and refused instructions were embodied in the general charge, and the case was fairly and fully submitted to the jury. The instructions, as given, cover every essential feature of the case with commendable clearness.

From a careful examination of the entire record, we are satisfied that there was no error, and that the judgment must be affirmed. Aeeirmed.