Smith v. Burns

135 P. 200, 71 Or. 133

• Court: Oregon Supreme Court
• Decided: September 30, 1913
• Status: Published

Opinions

Opinion by

Mr. Chief Justice McBride.

1. Section 550, L. O. L., contains the following provision:

“The party desiring to appeal may cause a notice, signed by himself or attorney, to be served on such adverse party or parties as have appeared in the action,”, etc.

An adverse party is a party whose interest in the judgment appealed from is in conflict with the modification or reversal sought by appellant: Conrad v. Pacific Packing Co., 34 Or. 341 (57 Pac. 1021). Were this a case arising upon contract or matters of that character wherein one judgment debtor can call upon another for contribution in case he is compelled to pay all of the judgment, he would of necessity be, injuriously affected if the appealing party should be released upon appeal; but in a tort of the character declared upon here he cannot call upon his codefendant for contribution in any event: 7 Am. & Eng. Ency. Law (2 ed.), 364; 9 Cyc. 804. The defendant Grossman by not appealing has, in effect, said that he is satisfied with the judgment, and in any event he cannot he placed in a worse position by any change in the judgment against his codefendant upon appeal. Motion Denied.

Decided June 9, 1914. (142 Pac. 352.)

Department 2. Statement by Mr. Justice Bakin.

This is an action for damages for personal injuries suffered when plaintiff was struck by defendant’s automobile. The defendant D. 0. Burns, at the time of the acts complained of, was owner of the automobile by which the injury was caused. Arthur Gross-man, his stepson, was operating the machine at the time of the accident. He was married and lived at 503 Mill Street, an apartment house, in which defendant Burns also occupied an apartment. Before his marriage he lived with Burns. He was in the employ of the Oregon Hardware Company. Burns owned and maintained the auto as a pleasure car for his family, and Grossman drove the car for Burns and his family at times, but did not have authority to get or use the car without permission from Burns or his wife. He had used it by express permission on a few occasions. On the day of the accident neither Burns nor his wife was at home, and Grossman took the car to go after his wife, who was on the east side of the river. On his return the car collided with plaintiff, causing the injury of which he complains; and he brought this action against Burns and Grossman for damages. Bums answered separately disclaiming liability. Upon trial a verdict was returned against the defendants jointly, and from a judgment thereon, defendant Burns appeals.