French v. Christner

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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Action by Guy French against A.F. Christner, John Dawson and A.S. Page, Inc., to recover for injuries sustained in a collision between a loaded log truck and other log-hauling equipment. From a judgment in favor of the plaintiff against the last named defendant, the last named defendant appeals and the plaintiff files a motion to dismiss the appeal.

MOTION DENIED. AFFIRMED. REHEARING DENIED. This case is before us at this time upon plaintiff's motion to dismiss the appeal of defendant, A.S. Page, Inc., a dissolved corporation.

On June 4, 1941, plaintiff, while an employee of one D.T. Waterhouse and while engaged in driving a loaded log-hauling truck on the Oregon Coast Highway in Clatsop county, Oregon, became involved in a collision of his truck with another log-hauling equipment owned by defendant A.S. Page, Inc., a dissolved corporation, and still another log-hauling equipment owned by defendant A.F. Christner, and operated by Christner's employee, defendant John Dawson. As a result of this collision plaintiff sustained serious and painful injuries.

Plaintiff and his employer were contributors to, and therefore under the protection of, the Oregon Workmen's Compensation Act.

Plaintiff elected to institute this action against the defendants herein, namely, A.F. Christner and John Dawson, and A.S. Page, Inc.

It appears from a supplemental answer filed by defendant A.S. Page, Inc., that certain expenses, incurred for treatment of plaintiff's injuries, and compensation to plaintiff for loss of wages, caused by said collision, were paid by the State Industrial Accident Commission.

A trial was had which resulted in a verdict and judgment against plaintiff in favor of defendants Christner and Dawson; and against defendant A.S. Page, Inc., in favor of plaintiff in the sum of $14,585.60.

Plaintiff was represented by Mr. F.M. Franciscovich, now deceased, and Mr. Frank C. Hesse.

As a basis for plaintiff's motion to dismiss said defendant's appeal, it is urged that defendant's notice of appeal is fatally defective, because it is not addressed to defendants Christner and Dawson, the personal representative of the late Mr. Franciscovich, or the State Industrial Accident Commission or either or any of them.

It is obvious that defendant's notice of appeal need only be addressed to adverse parties. This leads to a consideration of the question whether either Mr. Christner, Mr. Dawson, the personal representative of the late Mr. Franciscovich, or the State Industrial Accident Commission were adverse parties to appealing defendant.

Plaintiff states in his argument that defendant's notice of appeal was served upon defendants Christner and Dawson. This service in itself alone would not constitute those defendants adverse, and, therefore, necessary parties to the appeal.

Whether the appealing defendant's codefendants are adverse parties depends upon whether the right of contribution exists between joint tort feasors. The latest expression of this court on that subject is to be found in the case of Fidelity Casualty Company of New York v. Chapman, 167 Or. 661,120 P.2d 223, wherein this court, speaking through Mr. Justice BELT, say:

"The rule against allowing contribution in cases of this character is so well settled in this state — Smith v. Burns, supra, being particularly in point — that a review of the numerous authorities cited from other jurisdictions is not deemed necessary."

The manner in which the collision occurred in the case from which the foregoing quotation is made is strikingly similar to that of the instant case.

Silbaugh v. Guardian Building Loan Association, 164 Or. 286, 97 P.2d 943, 99 P.2d 1017, 101 P.2d 420, cited by plaintiff, is distinguishable from the case at bar in that in the Silbaugh case, as stated by Mr. Justice LUSK, if the judgment against appellant should be reversed and the nonappealing defendants should be compelled to pay it, they would lose their right to exact contribution from the appellant; while in the case at bar the nonappealing defendants have no right of contribution, nor will they have if plaintiff's appeal results in a reversal and a subsequent trial should result in a judgment against them. In re Brooks' Estate, (Downing v. Mahone), 167 Or. 428,118 P.2d 103, it was held that Mattie Alice Baker was an adverse party. She was a beneficiary of the estate. Plaintiff's claim against the estate had been disallowed. If plaintiff's appeal had resulted in a reversal of the order of disallowance and a further order directing its allowance, Mrs. Baker's interest in the estate would have been materially affected. As to the nonappealing defendant in the instant case, no such result could ensue from appealing defendant's appeal. As to the appealing defendant herein the nonappealing defendants were not and are not adverse parties.

With respect to the question whether appealing defendant's notice of appeal should have been addressed to the personal representative of the late Mr. Franciscovich and the State Industrial Accident Commission, it is well settled that a party to a judgment or decree entitled to service of notice of appeal must become a party in some manner recognized by law. In reGrimes' Estate, 170 Or. 204, 131 P.2d 448; In re Brooks'Estate, supra; Hafer v. Medford C.L.R. Co., (Davis v.Reddy), 60 Or. 354, 117 P. 1122, 119 P. 337.

An attorney, who merely represents a party in litigation, performs services therein as an attorney and claims an attorney's lien for such services, is not a party to the judgment rendered in such litigation. In re Grimes Estate, supra.

It follows that the personal representative of the late Mr. Franciscovich is not such a party. Not being a party, said personal representative was not entitled to service of the notice of appeal by appealing defendant, nor was it necessary to address such notice of appeal to Mr. Franciscovich's personal representative.

In Barger v. Taylor, 30 Or. 228, 42 P. 615, this court held that the state is not an adverse party in the sense that it must be served with a notice of appeal from a judgment or decree in its favor upon consideration of a contract found to be usurious.

We think the question, there decided, is analogous to the question whether the State Industrial Accident Commission is an adverse party to appealing defendant in the instant case. The reasoning employed in Barger v. Taylor, supra, is pertinent to that question:

"The defendant now moves to dismiss the appeal upon the ground that the state is an ``adverse party', and should have been served with notice. Under the decisions of this court, if it could be made to appear that the state is a ``party' to the decree appealed from in the sense contemplated by the statute regulating appeals (Hill's Code § 537), its interest being adverse to that of appellant, the failure to serve it with notice would be fatal to this appeal. But in our opinion the state cannot, under the circumstances of this case, be deemed a ``party' within the meaning of that statute. As used therein, the term ``party' must be understood in the ordinary legal sense, and to embrace such persons only as become parties to the case in some mode prescribed or recognized by law, so as to be bound by the proceeding. Now, the state never was made a party to this suit, nor did it become or seek to become such. It never appeared in any way, had no right to adduce testimony, cross-examine witnesses, or appeal from the decree had it been to the effect that the contract sued upon was not usurious."

Barger v. Taylor, supra, was decided before the statute was amended expressly limiting the required service of a notice of appeal to "such adverse party or parties as have appeared in the action or suit." Laws of Oregon, 1899, p. 228. The principle announced therein however is in harmony with the amendment.

It is true that in actions such as the instant case notice of their institution must be given to the State Industrial Accident Commission and the commission is given a lien for its advances to plaintiff upon any money recovered by plaintiff in such an action; but the commission did not appear in the case, and until the commission has become a party by appearing in the action no notice of appeal need be served upon or addressed to it. Subdivision (1), Section 10-803, Vol. 2, O.C.L.A., p. 201.

To the point that generally persons, who were not parties below and who are not parties to the judgment, although interested in the judgment as rendered, are neither necessary nor proper parties to the appeal, see 4 C.J.S., Subject, Appeal and Error, p. 863, § 398, and authorities cited in note 5; also 3 C.J., Subject, Appeal and Error, p. 1017, § 970, and authorities cited in note 12.

Plaintiff's motion to dismiss appealing defendant's appeal is denied.