Umatilla County v. Estes

208 P. 761, 105 Or. 248, 1922 Ore. LEXIS 68

• Court: Oregon Supreme Court
• Decided: July 18, 1922
• Status: Published

Opinion

McCOURT, J.

On the twenty-fifth day of July, 1920, Neil Hart and Jim Owen who were then con-' fined in the connty jail of Umatilla Connty, Oregon, with others broke jail, shot and killed T. D. Taylor, sheriff of that county, armed themselves and escaped into the Blue Mountains, between Pendleton and La Grande.

The following day a reward was offered for the capture of the fugitives, as follows: County of Umatilla, for the body of Neil Hart, dead or alive, $2,500; and for the body of Jim Owen, dead or alive, $1,000; City of Pendleton, for the capture of Neil Hart, dead or alive, $500; for the capture of Jim Owen, dead or alive, $250.

On the night of July 30, 1920, Hart and Owen were captured at a sheep camp in the Blue Mountains near the Toll Road and the toll-gate thereon, and were brought to La Grande and turned over and delivered alive to the proper officers of Umatilla County, who returned them to the Umatilla County jail; they were each thereafter indicted, tried and convicted of murder in the first degree. J. H. McLachlin and eight others, known and designated in the record as the La Grande posse, presented their claim to both Umatilla County and the City of Pendleton for the whole of the rewards offered for the capture of Hart and Owen. James Estes and eight others, known and designated in the record as the Pendleton posse, presented their claim to both the City of Pendleton and Umatilla County for one half of the rewards, and B. P. Courtney, Vernon Steiner, Alfred Smith, Claude Miles and others each presented a claim to an equitable share thereof.

The County Court of Hmatilla County and the common council of the City of Pendleton, were each in doubt as to who was entitled to said rewards; to resolve those doubts and prevent a multiplicity of suits, each brought suit, naming as defendants therein, all of the persons claiming said rewards or any part thereof, deposited in court the amount of the reward offered, and asked that the several defendants be required to appear and by answer set up their rights, if any, to such reward, or parts thereof, and that the court distribute and pay the same over to the parties found entitled thereto.

Afterwards the defendants appeared and answered, and issues .were joined. By agreement of the parties and their respective attorneys, the two cases were consolidated and tried together at one and the same time, and the court thereafter made and entered its decrees, whereby there was awarded to the Pendleton posse one half of said rewards and to the La Grande posse the other half thereof, with the direction that out of the moneys so awarded to the La Grande posse the sum of $100 be deducted and paid to B. P. Courtney for services rendered by him, and the sum of $62.50 to Yernon Steiner for services rendered by him, and to Alfred Smith and Claude Miles the sum of $25 each for services rendered by each of them, also a portion of the costs and disbursements incurred by the plaintiffs; that out of the one half of said rewards awarded to the Pendleton posse there be deducted and paid to Yernon Steiner the sum of $62.50 for services rendered by him, and to Alfred Smith and Claude Miles the sum of $50 each for services rendered by each of them.

The defendant J. H. McLachlin and others, composing the La Grande posse, have appealed from those decrees. The defendants Steiner and Courtney each perfected a cross-appeal.

Immediately after the escape of Hart, Owen and their accomplices, and before rewards had been offered for their _ apprehension, a large number of citizens went into the Blue Mountains searching for them, but no trace of their whereabouts was found until July 29th, at which time the chase had been abandoned by most, if not all, of those who at first entered upon it, except those persons, or most of them, constituting the Pendleton posse and J. H. McLachlin and three or four others of those constituting the La Grande posse. All those engaged in the search at that time who are claiming the reward, or a portion thereof, were acting in concert and in some degree under the direction of the defendant Lee 'Warnick, sheriff of Union County. The claimant J. H. McLachlin was a deputy sheriff of Union County.

Upon July 29th the claimant Vernon Steiner, while traveling upon a trail through the Blue Mountains, leading a number of pack horses belonging to a sheep camp of which he was the tender, saw two men, one of them carrying a revolver in his hand, at some distance, moving furtively toward him along the trail. He had learned the previous day of the escape of prisoners from the Umatilla County jail and the murder of Sheriff Taylor. He at once suspected that the men he saw were the fugitives. He left the trail and hid in the brush until they passed; then proceeded upon his way with the determination to communicate to the authorities the fact that he had seen two men whom he supposed to be two of those for whom search was being made, and in a short time met the claimant E. Neibee, who, after Steiner had shown bfm the tracks of the men Steiner had seen, undertook to carry the information Steiner had given him to the nearest forest ranger station, at which, there was a telephone. This required a ride of several miles over forest trails, which was promptly accomplished by Neibee. The claimant B. P. Courtney was in charge of the ranger station to which Neibee traveled; upon receipt of the information, Courtney communicated by telephone with the sheriff’s office of Union County and with the sheriff’s office of Umatilla County, advising them of the clue to the whereabouts of the fugitives, furnished by claimant Steiner. The latter resumed his duties as sheep camp tender when he had given Neibee the information mentioned, and did nothing further in respect to the capture of Hart and Owen.

In response to the information telephoned by Courtney to the sheriff’s office at La Grande, all those engaged in the search repaired as speedily as possible to a point in the Blue Mountains spoken of in the record as Green Mountain, where early the following morning they met the claimant Neibee, who furnished them in detail the information he had obtained from Steiner, together with such observations as he was able to make from his knowledge of the country and examination of the trail over which the fugitives had passed.

The mountains and trails about Green Mountain were searched and examined for some time, and the searchers becoming satisfied that the fugitives had left that vicinity, and that it was necessary to examine all the avenues of exit from the locality by traveling on foot through the mountains, it was decided to divide the posse and send a portion thereof around through the Grand Bonde Valley to intercept the fugitives in case their definite line of travel should be discovered. The claimant McLachlin is an old man, and the claimant Noe had broken arches and was unable to travel in the mountains, so claimant Warnick directed McLachlin, Noe and some others who were likewise unable to travel to go to La Grande and remain near telephones and to keep themselves in readiness to go to the point where they might be advised the fugitives could be expected to appear, and that in the meantime they arrange for the assistance of-Dan Murchinson, who was familiar with the mountains and the trails therein.

Thereupon those designated as the Pendleton posse, including claimant Neibee, -took np the search, and after some hours came upon the trail of the fugitives, from which it appeared they were headed in a northerly direction toward the toll road. In the meantime the claimant Courtney, being familiar with the forest trails, had attempted to follow the trail of the fugitives from the point where they had been seen by claimant Steiner, and while he. did not secure any definite trace of the line of travel of the fugitives from that point, he determined from what he did find and his knowledge of the mountains, that the fugitives were making for the toll road, traveling in a general northerly direction. He then made his way back to the ranger station and telephoned to the sheriff’s office at La Grande, talking to a deputy sheriff by the name of Mcllroy, to whom he imparted his opinion as to the likelihood that the fugitives were traveling northerly and would appear upon the toll road, in the vicinity of the toll-gate. McHroy in turn, informed McLachlin of the communication made by Courtney, and the former called Courtney on the telephone and interrogated him closely as to the ground of his opinion. McLachlin then gathered together the persons included in the La Grande posse, and by automobile proceeded toward the toll-gate, and when they arrived near Summerville, they were informed that some person was at a near-by telephone, endeavoring to call the sheriff’s office at La Grande. The person thus calling proved to be Herman Rosenberg of the Pendleton posse. The Pendleton posse had followed for several hours the trail of the fugitives, which they had earlier discovered and had definitely determined that they were making for the toll road and would probably appear thereon near the toll-gate. Rosenberg, who was the most robust and athletic of their members, had been designated by Warnick to travel through the mountains to the nearest telephone and communicate with the sheriff’s office at La Grande, with a view to having a posse intercept the fugitives at their point of appearance along or near the toll road. This Rosenberg did, and the posse in charge of McLachlin proceeded from Summerville to near the point where Rosenberg had indicated that Hart and Owen might appear, and observing a sheep camp near by, went to the same to make inquiries concerning the fugitives. There they found and captured them.

For several days, and until Hart and Owen were captured, the claimants Alfred Smith and Claude Miles each furnished and used the automobile owned by him for transportation of the searchers from place to place.

An offer of reward and acceptance of the offer before it is revoked results in a contract, which imposes upon the party offering the reward, an obligation to pay the same: 23 R. C. L. 1115; 34 Cyc. 1739, 1752; 24 Am. & Eng. Ency. of Law (2 ed.), 955; Ryer v. Stockwell, 14 Cal. 134 (73 Am. Dec. 634); Janvrin v. Town of Exeter, 48 N. H. 83 (2 Am. Rep. 185).

The offer of a reward may be accepted by any part of the public, if, as in each of the cases under consideration, it is offered to the public: 23 R. C. L. 1125; 34 Cyc. 1738; Zwolanek v. Baker Mfg. Co., 150 Wis. 517 (137 N. W. 769, Ann. Cas. 1914A, 793, 44 L. R. A. (N. S.) 1214). Such acceptance is indicated by substantial performance of the services and accomplishment of the result for which the reward is offered, and in no other manner: 23 R. C. L. 1128; 34 Cyc. 1743; McClaughry v. King, 147 Fed. 463 (8 Ann. Cas. 856, 7 L. R. A. (N. S.) 216); Kinn v. First Nat. Bank, 118 Wis. 537 (95 N. W. 969, 99 Am. St. Rep. 1012); Williams v. West Chicago St. R. R. Co., 191 Ill. 610 (61 N. E. 456, 85 Am. St. Rep. 278); Haskell v. Davidson, 91 Me. 488 (40 Atl. 330, 64 Am. St. Rep. 254, 42 L. R. A. 155).

Where the services requested in an offer of reward are of a character, and are made under circumstances, that require or permit the co-operation of numerous individuals for the accomplishment of the desired result, several persons by concerted action may join in performing the services, whereby that result is obtained, and thus become entitled to the reward, in which case the reward is to be divided -among them according to the relative value of their acts: 34 Cyc. 1750; 23 R. C. L. 1133; Elkhorn Valley Lodge v. Hudson, 59 Neb. 672 (81 N. W. 859); Janvrin v. Town of Exeter, 48 N. H. 83 (2 Am. Rep. 185); Fargo v. Arthur, 43 How. Pr. (N. Y.) 193.

The rewards under consideration are to be construed in the light of the circumstances existing at the time and under which they were offered. At that time Hart and Owen, with their associates, had fled into the Bine Mountains, a region that was roughly-timbered, sparsely settled and without highways. Pursuit of the fugitives had been taken up by a large number of citizens, who were acting more or less in concert. Their capture involved the discovery of the trail or trails that they had taken, their probable destination, their interception, location and apprehension, which in view of the nature of the country and the difficulty of pursuit through the same, contemplated the services of several persons for the accomplishment of the result desired.

The evidence establishes that, with the exception of Steiner, the claimants to whom the Circuit Court made awards, acted in concert in effecting the capture of Hart and Owen. The acts of each contributed in some appreciable measure in bringing about the desired result, and the acts of all of them together produced that result, thereby entitling each of them to participate in the reward.

The claimant Steiner did not act in concert with the others who effected the capture of the fugitives. He furnished the pursuers with the first authentic information they had obtained concerning the whereabouts of the fugitives, but he did not take up the pursuit. Steiner performed the initial act or service in the series of acts performed which led immediately to the capture of Hart and Owen; the service performed by him put in motion all the subsequent activities resulting in the capture; for four days the searchers had been exerting themselves to discover the very information which Steiner furnished, but without definite clue.

Acting upon the information given by Steiner, the posse quickly captured the fugitives: they would not have been captured until much later if Steiner had not promptly given the information, and they might have eluded capture entirely. That information contributed proximately to. the capture of Hart and Owen. Steiner has a persuasive claim upon those to whom he gave the information to a portion of the reward, which in equity and good conscience should be recognized.

There are cases holding that where the efforts of several claimants who did not act in concert contributed to produce the desired result, the reward in a proper case will be apportioned equitably among them: 23 R. C. L. 1133; Bloomfield v. Maloney, 176 Mich. 548 (142 N. W. 785, Ann. Cas. 1915B, 662, and note); Kinn v. First Nat. Bank, 118 Wis. 537 (95 N. W. 969, 99 Am. St. Rep. 1012).

The funds are in court and all the parties are before the court; without adopting the doctrine of the authorities last cited for application in all cases, we hold that Steiner is entitled to an equitable portion of the rewards.

The apportionment made by the Circuit Court takes into consideration the relative value of the services of the respective claimants, and we think awards to each the share to which he is equitably entitled.

The decree of the Circuit Court is affirmed.

Affirmed. Rehearing Denied.