Turk v. Botsford ( 1914 )

Mr. Justice Burnett

delivered the opinion of the court.

After declaring that in fact the defendant made the representations substantially as stated in the complaint, the court made the following findings:

“That each and all of said representations and statements so made by said defendant were and are false and wholly untrue; that said defendant made said representations and statements carelessly and negligently and in reckless disregard of whether they were true or false; that each and all of said plaintiffs believed said statements so made by defendant to be true; that in making said statements and representations defendant intended to deceive and did deceive the plaintiffs, to their damage as hereinafter set forth.”

1. The principal contention at the argument was that the finding that the representations were made in reckless disregard of whether they were true or false will not sustain the allegation that the defendant had positive knowledge of their falsity. It is laid down in Section 97, L. O. L., that “no variance between the allegation in a pleading and the proof shall be deemed material, unless it have actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits.” The defendant’s contention in this respect was made the basis of a motion for judgment of nonsuit, which was properly overruled when tested by this section.

2. The defendant himself on his own behalf testified that he had been in Coos County and was familiar with the timber there from which the ties were to be made. It also appears in the testimony that the plaintiffs knew nothing of the situation before going there, except what the defendant told them. The defendant further urges that the statements imputed to him were mere matters of opinion and not representations of facts. Peculiarly applicable, to this kind of a case is the language of Mr. Justice Slater in Boelk v. Nolan, 56 Or. 229, 237 (107 Pac. 689, 691):

“A matter of opinion may amount to an affirmation of fact, when the parties are not dealing upon equal terms, and one of them has, or is presumed to have, means of information not equally open to the other.”

The plaintiffs had gone to the defendant seeking employment, and relied wholly upon his representations of the situation in a distant county where they had never been. It was his duty to inform them correctly about the conditions there.

Moreover, under all the circumstances of this case, the finding that the statements were recklessly made is not a material variance from the allegation that the defendant knew them to be false. If the defendant was actually misled to his hurt, he should have availed himself of the other provisions of Section 97, L. O. L., reading thus:

“Whenever it shall be alleged that a party has been so misled, that fact shall be proved to the satisfaction of the court, and in what respect he has been misled; and thereupon the court may order the pleading to be amended upon such terms as shall be just.”

No application of this kind was made to the trial court. Indeed, the defendant himself by his own testimony about his knowledge of conditions in Coos County would seem to have supplied the defect of which he complains.

3. The defendant also contends that the plaintiffs waived their cause of action, upon which they rely, by going to work after they saw the kind of timber furnished. This contention cannot avail the defendant for the reason that, without dispute, the testimony shows that the man to whom the defendant referred them as the local agent of the company informed the plaintiffs that he had no work for them, and sent them to a contractor who was engaged in making ties and for whom they labored as stated. Working for an independent contractor does not operate as a waiver of the tort alleged against the defendant, and their deduction of their earnings in that service, considered most favorably for defendant, are referable merely to the duty of a plaintiff to minimize his. damages as much as possible.

It is fair to state that there was testimony on behalf of the defendant contradicting the statements of the plaintiffs as witnesses in their own behalf, but the case is not open to us to retry the question of fact. On the state of the record in this action at law, we can examine it only to ascertain if there was evidence tending to support the findings of fact which are equivalent to the verdict of a jury.

Based upon this proposition that there was such evidence, the judgment is affirmed. Affirmed.

Mr. Chief Justice McBride, Mr. Justice Eakin and Mr. Justice Bean concur.