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or/1135882.json

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+"{\"id\": \"1135882\", \"name\": \"STATE OF OREGON, Respondent, v. ALEXANDRO CASTILLE MARTINEZ, Appellant\", \"name_abbreviation\": \"State v. Martinez\", \"decision_date\": \"2000-08-02\", \"docket_number\": \"9803-32185; CA A104012\", \"first_page\": \"304\", \"last_page\": \"304\", \"citations\": \"169 Or. App. 304\", \"volume\": \"169\", \"reporter\": \"Oregon Reports, Court of Appeals\", \"court\": \"Oregon Court of Appeals\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T18:12:43.186275+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Landau, Presiding Judge, and Linder and Brewer, Judges.\", \"parties\": \"STATE OF OREGON, Respondent, v. ALEXANDRO CASTILLE MARTINEZ, Appellant.\", \"head_matter\": \"Argued and submitted May 31,\\naffirmed August 2, 2000\\nSTATE OF OREGON, Respondent, v. ALEXANDRO CASTILLE MARTINEZ, Appellant.\\n(9803-32185; CA A104012)\\n8 P3d 250\\nRankin Johnson IV, Deputy Public Defender, argued the cause for appellant. With him on the brief was David E. Groom, Public Defender.\\nTimothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.\\nBefore Landau, Presiding Judge, and Linder and Brewer, Judges.\", \"word_count\": \"96\", \"char_count\": \"618\", \"text\": \"PER CURIAM\\nAffirmed. State v. Hutchinson, 169 Or App 264, 9 P3d 722 (2000).\"}"

or/12412783.json

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+"{\"id\": \"12412783\", \"name\": \"STATE OF OREGON, Plaintiff-Respondent, v. MYYONNA MICHELLE HODGES, Defendant-Appellant\", \"name_abbreviation\": \"State v. Hodges\", \"decision_date\": \"2017-04-05\", \"docket_number\": \"CR1401866; A160013\", \"first_page\": \"665\", \"last_page\": \"666\", \"citations\": \"284 Or. App. 665\", \"volume\": \"284\", \"reporter\": \"Oregon Reports, Court of Appeals\", \"court\": \"Oregon Court of Appeals\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T17:52:59.181259+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.\", \"parties\": \"STATE OF OREGON, Plaintiff-Respondent, v. MYYONNA MICHELLE HODGES, Defendant-Appellant.\", \"head_matter\": \"Submitted January 30;\\nportion of judgment requiring defendant to pay $60 \\u201cMandatory State Amt\\u201d reversed, otherwise affirmed April 5;\\npetition for review denied June 29, 2017 (361 Or 645)\\nSTATE OF OREGON, Plaintiff-Respondent, v. MYYONNA MICHELLE HODGES, Defendant-Appellant.\\nClackamas County Circuit Court\\nCR1401866; A160013\\n391 P3d 993\\nErnest G. Lannet, Chief Defender, and Kyle Krohn, Deputy Public Defender, Criminal Appellate Section, Office of Public Defense Services, filed the brief for appellant.\\nEllen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Lauren P. Robertson, Assistant Attorney General, filed the brief for respondent.\\nBefore Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.\", \"word_count\": \"271\", \"char_count\": \"1817\", \"text\": \"PER CURIAM\\nDefendant appeals a judgment of conviction for first-degree theft. Among other terms, the judgment imposed $60 on defendant's conviction as a \\\"Mandatory State Amt.\\\" We write only to address the court's imposition of the $60 mandatory state amount and reject defendant's other assignment of error without written discussion.\\nAs to the \\\"Mandatory State Amt,\\\" defendant argues that the trial court erred because no statute authorized the trial court to impose that monetary award against her. The state concedes that the trial court erred in imposing that amount. We agree and accept the state's concession. See State v. Lindemann, 272 Or App 780, 358 P3d 328, rev den, 358 Or 248 (2015) (accepting state concession that imposition of $60 mandatory state amount was in error because there is no statutory authority to impose that monetary award). Accordingly, we reverse the portion of the judgment that imposes the $60 mandatory state amount on defendant's conviction.\\nPortion of judgment requiring defendant to pay $60 \\\"Mandatory State Amt\\\" reversed; otherwise affirmed.\"}"

or/1553837.json

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+"{\"id\": \"1553837\", \"name\": \"In the Matter of the Compensation of Virginia McClearen, Claimant. ROGUE VALLEY MEDICAL CENTER, Petitioner, v. Virginia McCLEAREN, Respondent\", \"name_abbreviation\": \"Rogue Valley Medical Center v. McClearen\", \"decision_date\": \"1998-01-21\", \"docket_number\": \"WCB 95-04438; CA A96102\", \"first_page\": \"239\", \"last_page\": \"246\", \"citations\": \"152 Or. App. 239\", \"volume\": \"152\", \"reporter\": \"Oregon Reports, Court of Appeals\", \"court\": \"Oregon Court of Appeals\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T21:19:48.449899+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before De Muniz, Presiding Judge, and Haselton and Linder, Judges.\", \"parties\": \"In the Matter of the Compensation of Virginia McClearen, Claimant. ROGUE VALLEY MEDICAL CENTER, Petitioner, v. Virginia McCLEAREN, Respondent.\", \"head_matter\": \"Argued and submitted November 14, 1997,\\naffirmed January 21,\\npetition for review denied April 21, 1998 (327 Or 123)\\nIn the Matter of the Compensation of Virginia McClearen, Claimant. ROGUE VALLEY MEDICAL CENTER, Petitioner, v. Virginia McCLEAREN, Respondent.\\n(WCB 95-04438; CA A96102)\\n952 P2d 1048\\nAdam T. Stamper argued the cause for petitioner. With him on the brief was Cowling, Heysell, Plouse & Ingalls.\\nBruce D. Smith argued the cause and filed the brief for respondent.\\nBefore De Muniz, Presiding Judge, and Haselton and Linder, Judges.\\nLINDER, J.\", \"word_count\": \"2138\", \"char_count\": \"13606\", \"text\": \"LINDER, J.\\nEmployer seeks review of a Workers' Compensation Board order reinstating claimant's award of permanent total disability (PTD). The primary issue on review is whether the Board correctly concluded that ORS 656.283(7), as amended in 1995, bars the admission of evidence not submitted at the reconsideration level in a PTD dispute. We review for errors of law, ORS 656.298(7), ORS 183.482(8), and affirm.\\nClaimant worked for employer for approximately 18 years as a medical transcriptionist. In 1991, she fell at work, compensably injuring her left knee, hip and buttock. Claimant also suffered from congenital back and pulmonary health problems, neither of which affected her ability to do her job, but which limited treatment options for her compensable injury. Increased pain in her left lower back and left hip resulting from the injury caused claimant to reduce her work schedule in late 1992. Due to chronic pain and her inability to work while taking pain relievers, claimant resigned on March 31,1993.\\nOn September 23,1994, claimant's claim was closed by a determination order awarding her 18 percent unscheduled permanent partial disability (PPD). Claimant requested reconsideration. In the reconsideration proceeding, claimant requested PTD and presented a written report of a vocational expert, stating that claimant could not be gainfully employed at that time. Claimant also presented reports from her attending physician. The order on reconsideration, dated April 6,1995, awarded claimant PTD.\\nEmployer requested a hearing. In advance of the hearing, employer, by letter, advised the administrative law judge (ALJ) that the parties had conferred about \\\"the admissibility of medical, vocational and lay evidence at a post-SB 369 hearing where the issue is permanent total disability.\\\" The parties asked for \\\"some guidance concerning the admissibility of expert vocational testimony that was not before the Appellate Review Unit on reconsideration.\\\" In response, the ALJ issued an \\\"interim order\\\" in which the ALJ concluded that \\\"the limitations of ORS 656.283(7) do not apply to the issue of permanent total disability.\\\"\\nAt the hearing, employer submitted the report of a doctor who had examined claimant on August 8, 1995, and who opined that claimant could perform part-time work at home. Employer also called as a witness a vocational consultant, who testified that he had reviewed the documentary evidence and concurred that claimant could be gainfully employed working in her home on a part-time basis. Relying on that evidence, the ALJ reinstated the 18 percent unscheduled PPD that had been awarded in the determination order.\\nClaimant appealed the ALJ's order to the Board. The Board determined that \\\"the record at any subsequent hearing concerning a challenge to the reconsideration is limited as stated in amended ORS 656.283(7).\\\" Thus, the Board concluded that the ALJ erroneously considered the post-reconsideration evidence. Examining the record de novo and without the post-reconsideration evidence, the Board found that claimant was entitled to PTD and reinstated the April 6, 1995, award on reconsideration.\\nOn judicial review, employer disputes the Board's application of ORS 656.283(7), arguing that the evidentiary limitation in the statute does not apply to PTD determinations. Employer also asserts that claimant's challenge to the post-reconsideration evidence was not preserved.\\nWe begin with the preservation question. Employer relies on Fister v. South Hills Health Care, 149 Or App 214, 216, 942 P2d 833 (1997), to argue that the Board erred in considering the admissibility of the post-reconsideration evidence under ORS 656.283(7), because the evidence was submitted at the hearing without objection. This case differs from Fister, however. Here the parties sought and obtained a prehearing ruling from the ALJ on the admissibility of the new evidence. As a general proposition, a party does not have to object to evidence at the time of trial or hearing when a conclusive determination of admissibility has been made beforehand. See, e.g., State v. Cole, 323 Or 30, 35, 912 P2d 907 (1996) (pretrial ruling sufficient to preserve error even where objection to evidence could have been renewed at trial). Nevertheless, employer urges that the parties, by requesting the prehearing ruling, were agreeing to be bound by it. We find no support, however, for that characterization of what occurred. The record reflects only that the parties agreed to seek a prehearing ruling on the admissibility of the post-reconsideration evidence. The ALJ gave them that ruling. Neither the letter requesting the ruling nor the ALJ's interim order suggests that the parties were waiving their ability later to dispute the ALJ's legal conclusion on the application of the statute. We conclude that the issue was properly preserved for the Board's review.\\nWe turn to the merits. In interpreting the statute, the starting point, of course, is the statute's text and context. PGE v. Bureau of Labor and Industries, 317 Or 606, 610, 859 P2d 1143 (1993). ORS 656.283(7), as amended, provides, in part:\\n\\\"Except as otherwise provided in this section the [ALJ] is not bound by common law or statutory rules of evidenced] Evaluation of the worker's disability by the [ALJ] shall be as of the date of issuance of the reconsideration order pursuant to ORS 656.268. Any finding of fact regarding the worker's impairment must be established by medical evidence that is supported by objective findings. Evidence on an issue regarding a determination order that was not submitted at the reconsideration required by ORS 656.268 is not admissible at hearing\\nThe statute's terms are relatively straightforward. The statute provides that evidence on an issue regarding a determination order is not admissible at the hearing before the ALJ if it was not submitted at the reconsideration level.\\nThere is no ambiguity in that language. As we stated in Precision Castparts Corp. v. Plummer, 140 Or App 227, 231, 914 P2d 1140 (1996):\\n\\\"The unmistakable import of the text of ORS 656.283(7) is that any evidence, including a claimant's own testimony concerning the notice of closure or reconsideration order, is inadmissable at a subsequent hearing concerning the extent of the injured worker's permanent disability if not submitted at reconsideration and not made part of the reconsideration record.\\\" (Emphasis in original.)\\nWe agree with that observation in Precision Castparts and find the import of ORS 656.283(7) to be as unmistakable now as it was then. Under the amended terms of the statute, in determining permanent disability, any evidence, including vocational evidence, not submitted during the reconsideration process is inadmissible at a subsequent hearing.\\nEmployer, however, argues that the statute does not apply to PTD determinations, for two reasons. Looking to context, employer urges that the statute conflicts with ORS 656.287(1), which provides:\\n\\\"Where there is an issue regarding loss of earning capacity, reports from vocational consultants regarding job opportunities, the fitness of claimant to perform certain jobs, wage levels, or other information relating to claimant's employability shall be admitted into evidence at compensation hearings, provided such information is submitted to claimant 10 days prior to hearing and that upon demand from the adverse party the person preparing such report shall be made available for testimony and cross-examination.\\\"\\nEmployer's argument seems to be that ORS 656.287(1) provides broadly for the admission of vocational evidence in PTD hearings and it therefore will be rendered \\\"without effect\\\" if ORS 656.283(7) excludes post-reconsideration vocational evidence at the hearing before the ALJ. To be sure, ORS 656.287(1) standing alone provides for the admission of vocational report evidence at \\\"compensation hearings\\\" (that is, at the hearing before the ALJ) subject only to the condition that the report be disclosed to the claimant 10 days prior to the hearing. As amended, however, ORS 656.283(7) provides a further qualification on the admissibility of vocational evidence. Now, the vocational evidence must also have been submitted at the reconsideration level. We agree with the Board's order on review, where it stated:\\n\\\"In the face of the 1995 Legislature's clear and unqualified intent to limit evidence at hearing to evidence submitted at reconsideration, we decline to broadly interpret ORS 656.287(1) as a grant of authority to admit 'post-reconsideration' vocational evidence at such a hearing. Such an interpretation would undermine the evidentiary limitation the legislature sought to impose under the 1995 Act. Rather, in order to best harmonize the provisions of ORS 656.287(1) and amended ORS 656.283(7), we interpret ORS 656.287(1) as a grant of authority to admit at hearing vocational reports so long as: (1) the reports were previously submitted at the reconsideration proceeding; and (2) the other requirements of ORS 656.287(1) are fulfilled. These requirements include the condition that the vocational consultant whose report is being offered into evidence at hearing must be made available for testimony and cross-examination at hearing, upon request by the adverse party.\\\"\\nThe Board correctly concluded that the two statutes can be harmonized to give effect to both. Because they can be, they must be. ORS 174.010.\\nEmployer's remaining argument is that the evidentiary limitation in ORS 656.283(7) must be understood to apply only to permanent partial disability (PPD) determinations. Employer reasons that permanent total disability (PTD) determinations require the most contemporaneous information available about a claimant's ability to work, rather than \\\"outdated or speculative information.\\\" In effect, employer argues that the record in a PTD case must remain open at the hearing before the ALJ, because PTD determinations demand the most current evidence bearing on a claimant's employability.\\nEmployer's argument ignores the statutory change at issue in this case. Previously, ORS 656.283(7) contained no procedural limitation on the evidence that the ALJ could consider in evaluating a claimant's disability. That was true even though ORS 656.283(7), since 1990, has provided that a worker's disability is to be evaluated as of the date of issuance of the reconsideration order. We therefore held in Safeway Stores, Inc. v. Smith, 122 Or App 160, 857 P2d 187 (1993), that although the ALJ must evaluate disability as of the date of issuance of the reconsideration order, the ALJ may consider evidence on that question that could not have been submitted on reconsideration. We described that result as \\\"curious,\\\" but \\\"compelled by the statutes.\\\" Id. at 163.\\nThe 1995 amendment to ORS 656.283(7) eliminated that curious result, and in doing so, eliminated the premise from which employer argues. The legislature now has limited the disability determination to evidence submitted at the reconsideration proceeding, thus effectively closing the record at that point. It no longer is true that the record remains open through the hearing before the ALJ to new and more current evidence of the extent of a worker's disability. Employer's argument is, at root, an objection to the statutory change, not a basis to construe the statute to mean something other than what it plainly says.\\nAffirmed.\\nOr Laws 1995, ch 332, \\u00a7 34. We have held that chapter 332 generally applies retroactively to pending cases. Volk v. America West Airlines, 135 Or App 565, 899 P2d 746 (1995), rev den 322 Or 645 (1996).\\nWe note that employer also assigns error to the Board's PTD finding. Employer does not separately argue that point, however. See ORAP 5.45(6) (separate argument must follow each assignment of error unless the assignments present essentially the same legal question). We therefore understand employer to challenge the PTD finding only on the theory that the Board should have considered employer's post-reconsideration evidence of employability. Because we conclude that the Board properly rejected that evidence, employer's limited challenge to the PTD finding fails.\\nMoreover, we note that the Board in this case also interpreted ORS 656.287(1) to permit cross-examination at the ALJ hearing of the person who prepared the report, if the adverse party requests it. Assuming that the Board is correct in that conclusion (a conclusion neither party disputes on review), the statute has continuing force and effect in that regard as well.\\nOr Laws 1990, ch 2, \\u00a7 20 (Spec Sess).\\nThat is not to suggest that the extent of a worker's disability is not subject to reexamination based on new evidence and circumstances. See ORS 656.206(4), (5) and OAR 436-30-055(5) (reexamination of PTD claims to occur every two years, on the basis of current information about a worker's employability). The point is that the review before the ALJ is no longer the time and place to expand the record to encompass any new information.\"}"

or/178607.json

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+"{\"id\": \"178607\", \"name\": \"In the Matter of Baby Boy Cooper, aka Jahan Jamal Cooper, aka Isaac Cooper, Minor Child. STATE ex rel JUVENILE DEPARTMENT OF MULTNOMAH COUNTY, Respondent, v. Meisha Diane COOPER, Appellant\", \"name_abbreviation\": \"State ex rel. Juvenile Department v. Cooper\", \"decision_date\": \"2003-07-16\", \"docket_number\": \"9903-804672; A119563\", \"first_page\": \"588\", \"last_page\": \"601\", \"citations\": \"188 Or. App. 588\", \"volume\": \"188\", \"reporter\": \"Oregon Reports, Court of Appeals\", \"court\": \"Oregon Court of Appeals\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T20:10:36.893407+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Haselton, Presiding Judge, and Deits, Chief Judge, and Wollheim, Judge.\", \"parties\": \"In the Matter of Baby Boy Cooper, aka Jahan Jamal Cooper, aka Isaac Cooper, Minor Child. STATE ex rel JUVENILE DEPARTMENT OF MULTNOMAH COUNTY, Respondent, v. Meisha Diane COOPER, Appellant.\", \"head_matter\": \"Argued and submitted April 14,\\nreversed and remanded July 16, 2003\\nIn the Matter of Baby Boy Cooper, aka Jahan Jamal Cooper, aka Isaac Cooper, Minor Child. STATE ex rel JUVENILE DEPARTMENT OF MULTNOMAH COUNTY, Respondent, v. Meisha Diane COOPER, Appellant.\\n9903-804672; A119563\\n72 P3d 674\\nPeter Miller argued the cause and filed the brief for appellant.\\nMichael C. Livingston, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.\\nKathryn Underhill argued the cause and filed the brief for the child.\\nBefore Haselton, Presiding Judge, and Deits, Chief Judge, and Wollheim, Judge.\\nHASELTON, P. J.\", \"word_count\": \"4847\", \"char_count\": \"29426\", \"text\": \"HASELTON, P. J.\\nMother appeals from a judgment terminating her parental rights and ordering the permanent commitment of her child to the Department of Human Services (DHS) for adoption. ORS 419B.500. Mother argues that the trial court erred in entering the termination judgment on the basis of the presentation of a prima facie case because, although she failed to personally appear for the initial hearing on the termination petition, see ORS 419B.917, her guardian ad litem did appear and requested that the court set dates for trial. We conclude that the guardian ad litem's appearance and objection precluded the summary termination of mother's parental rights. Consequently, we reverse and remand.\\nAlthough we review the record de novo, ORS 419A.200(6)(b) and ORS 19.415(3), the material facts are uncontroverted. The child was born on October 19, 2001. On the same day, he was placed in protective custody due to concerns about mother's mental health and her ability to parent. On October 22, the state filed a petition alleging that, because \\\"[t]he mother's mental health issues place the [child] at risk\\\" and \\\"[t]he whereabouts and legal status of the father are unknown,\\\" the child was properly within the jurisdiction of the juvenile court. Following a hearing on that same date, the court granted temporary custody of the child to DHS and ordered that the child be placed in shelter care. That determination was based on the court's findings that\\n\\\"mother has serious mental health issues [and w]as placed on psychiatric hold. Older child in relative care\\u2014mother unable to provide care. Mother made threats to harm child, demonstrating symptoms of psychosis.\\\"\\nOn December 31, 2001, the child's attorney moved for an order appointing a guardian ad litem for mother, asserting that, because of mother's mental disabilities, she could not \\\"adequately give direction to [her] counsel.\\\" In particular, as described by the child's attorney in her supporting affidavit, mother's mental status had \\\"deteriorated while in custody pending criminal charges\\\" and mother's criminal defense attorney was seeking an aid-and-assist evaluation on her behalf. The affidavit further represented that\\n\\\"[mother's attorney] did not arrange transport of [mother] to the status hearing because [mother] was too unstable to participate in the hearing. [Mother] is not currently taking medication, which she has taken previously. Dr. Robert Basham has previously diagnosed [mother] with Schizophrenia, Paranoid Type, Rule Out Intermittent Explosive Disorder, and Paranoid Personality Disorder.\\\"\\nOn January 2,2002, the state filed an amended petition, alleging that the child remained within juvenile court's jurisdiction because (1) \\\"[t]he mother's mental health issues place the [child] at risk\\\"; (2) \\\"[t]he whereabouts and legal status of the father are unknown\\\"; (3) \\\"[t]he mother's chaotic lifestyle and residential instability place the child at threat of harm\\\"; and (4) \\\"[t]he mother has anger control problems with violent propensities that place her child in threat of harm.\\\"\\nOn January 28, after the status hearing on the amended petition, the juvenile court appointed a guardian ad litem for mother and scheduled a hearing to adjudicate the jurisdictional petition. Mother did not attend that hearing on April 2, because she was still in custody, but her attorney and guardian ad litem did appear and participate in the hearing. On April 12, the trial court entered a judgment establishing dependency jurisdiction over the child.\\nOn April 17, 2002, the child's attorney filed a petition to terminate mother's parental rights. In an affidavit submitted in support of the termination petition, the child's attorney represented that,\\n\\\" [a] t the time of the child's birth, a psychiatric hold was placed on the mother. The mother is diagnosed as schizophrenic, paranoid type. The mother is currently incarcerated awaiting an aid and assist evaluation at the Oregon State Hospital. The mother has another child not in her custody, to whom she relinquished her parental rights on February 23, 2000, due to her inability to provide that child with minimally adequate care. The conditions that led to mother's inability to care for that older sibling have not been ameliorated. In addition to chronic mental illness, mother suffers from an anger control problem, which places this child at risk of harm.\\\"\\nThe initial hearing on the termination petition was scheduled for May 1. In April, the child's attorney sought a continuance because, due to jail overcrowding, mother had been released from custody before her transfer for the aid-and-assist evaluation and her location was unknown. The court granted that continuance. On August 16, 2002, because mother's whereabouts were still unknown, the court granted the child's attorney's motion for an order directing service of summons on mother by publication and posting. As determined by the court's order to show cause, the summons required that mother appear on October 2, 2002, for the initial hearing on the termination petition.\\nAlthough mother was served by publication and posting, she did not appear for the October 2 hearing. Mother's guardian ad litem and the guardian ad litem's attorney were also summoned and did appear. Because of mother's absence, the child's attorney moved to proceed with the presentation of a prima facie case on the allegations of the termination petition. The guardian ad litem objected to the court going forward at that time with the adjudication of the petition, and the following colloquy ensued:\\n\\\"[Guardian ad litem:] Well, I think, Your Honor, as her guardian ad litem, having been appointed in that capacity and the reason I was appointed was because at the time she was in custody pending an aid and assist evaluation that was ordered by the downtown department, it presumes, of course, she is not competent. So as her guardian ad litem, I am standing here in her shoes and having not had a chance to speak with her in the recent past I am requesting trial dates be set because I think appointing a guardian ad litem, the fact there was an aid and assist pending a criminal matter again presumes incompetence. I as her guardian ad litem am here for the purposes of litigation, stand in her shoes. I am present and request trial dates be set.\\n\\u2756\\n\\\"[The court:] [W]hen is the last time you had contact with this mother?\\n\\\"[Guardian ad litem:] Your Honor, the agency has not had any contact since her release from jail which was March of'02.\\\"\\nThe guardian ad litem made no representations as to the nature of any evidence or defense to the petition that she believed could be advanced on mother's behalf at trial.\\nAfter that exchange, the court concluded that mother \\\"was served and that the moving party has fulfilled their obligations, statutory obligations in this proceeding\\\" and directed the child's attorney to \\\"proceed on the petition today.\\\" Thus, notwithstanding the guardian ad litem's request that the court schedule dates for a full adversarial trial of the petition to terminate parental rights, the juvenile court directed the child's attorney to proceed with the prima facie presentation. The court continued the appointments of the guardian ad litem and the guardian ad litem's attorney for 31 days and then excused both for the remainder of the proceeding.\\nThe child's attorney then presented the testimony of a DHS caseworker substantiating the allegations of the termination petition and asked the court to take judicial notice of the legal file. Based on that prima facie showing, the trial court determined that sufficient allegations of the petition had been proved by clear and convincing evidence and terminated mother's parental rights.\\nOn appeal, mother does not challenge the adequacy of the summons requiring her appearance at the October 2, 2002, hearing or the sufficiency of the evidence to support termination of her parental rights. Instead, mother contends that the court erred in denying the guardian ad litem's request to schedule trial dates and by allowing the child's attorney to proceed with the prima facie hearing. According to mother, although ORS 419B.917 allows the court to proceed in a parent's absence if the parent has been properly summoned, \\\"the parent was present in this case through her [guardian ad litem]. Therefore, the court was not authorized to proceed over the [guardian ad . litem's] request for contested trial dates.\\\" Mother further asserts that, because \\\"[t]he purpose in appointing a [guardian ad litem] is to protect the due process rights of a parent who, due to mental illness, is incapable of appearing or comprehending court proceedings [,]\\\" the court's decision to proceed on the basis of the presentation of a prima facie case, notwithstanding the guardian ad litem's request to set dates for trial, denied mother \\\"her fundamental liberty interest in her child and consequent due process right to a fair hearing in the termination proceeding.\\\"\\nThe state responds that ORS 419B.917 requires personal appearance by a parent when properly summoned in a termination matter and authorizes the court, upon sufficient proof, to summarily adjudicate the merits of the termination petition as to the rights of any nonappearing parent. The state further asserts that a guardian ad litem. represents the parent but does not \\\"become the parent\\\" for purposes of determining whether that parent has \\\"appeared\\\" for purposes of ORS 419B.917(1)\\u2014and, consequently, the court did not err in proceeding with the adjudication of the termination petition on the basis of a prima facie presentation in mother's absence.\\nThus, the parties' dispute reduces to a single question: Does ORS 419B.917 authorize the juvenile court to summarily adjudicate the merits of a termination petition based on a prima facie presentation where (a) a parent who has been properly summoned, does not personally appear at a pretrial hearing, but (b) that parent's duly appointed guardian ad litem does appear at the hearing and, on the parent's behalf, objects and asserts an entitlement to a full adversarial trial on the merits of the petition?\\nThe answer lies in the interplay of ORS 419B.917 and ORS 419B.875(2), pertaining to the appointment and rights of guardians ad litem in dependency proceedings. For the reasons that follow, we conclude that, under those statutes, a juvenile court cannot summarily adjudicate a termination petition over the guardian ad litem's objections.\\nORS 419B.917 provides:\\n\\\"(1) If a child is before the court and a person who is required to be summoned has been summoned and has failed to appear for any dates, including but not limited to trial dates for which the person has been summoned, and the petitioner is ready to proceed, the court may proceed with the case in the person's absence. If the summoned party seeks a change of the date for which the party is summoned, the party must appear at the time the request to change the date is made to receive service of summons for a new date or must authorize the party's attorney to accept service of summons for the new date.\\n\\\"(2) Except by express permission of the court, for a jurisdictional or termination of parental rights trial or related mandatory court appearances, summoned parties may not waive appearance or appear through counsel.\\\"\\n(Emphasis added.) Neither our court nor the Supreme Court has addressed that statute's application to circumstances in which a guardian ad litem has been appointed for a \\\"nonap-pearing\\\" and incapacitated parent. We proceed, then, to employ the methodology prescribed in PGE v. Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993), looking first to the text of the statute, read in context, as the best indicator of the legislature's intent. Id. at 610-11.\\nORS 419B.917(1) provides, in part, that, if a \\\"person who is required to be summoned has been summoned and has failed to appear for any dates, the court may proceed with the case in the person's absence.\\\" (Emphasis added.) ORS 419B.839, in turn, provides that summons \\\"must be issued to be served\\\" on (1) the legal parents of the child; (2) the legal guardian of the child; (3) the person with physical custody of the child; (4) under certain circumstances, the putative father of the child; and (5) if the child is 12 years of age or older, the child himself or herself.\\nThus, mother, as a \\\"legal parent of the child,\\\" was a person \\\"required to be summoned\\\" within the meaning of ORS 419B.917(1). Given the statutory text, there is no question that\\u2014but for the appointment of the guardian ad litem\\u2014the juvenile court could have \\\"proceeded with the case\\\" in mother's absence, including, as appropriate, summarily terminating mother's parental rights upon a sufficient prima facie showing. But what effect does the appointment of a guardian ad litem and the guardian's appearance and objections at a pretrial hearing have on the application of ORS 419B.917U)?\\nORS 419B.875(2), which was enacted concurrently with ORS 419B.917, see 188 Or App at 595-96 n 4, provides:\\n\\\"When a court determines that a parent or guardian, due to mental or physical disability, cannot adequately act in the parent's or guardian's interests or give direction to the parent's or guardian's counsel on decisions the parent or guardian must make, the court shall appoint some suitable person to act as guardian ad litem for the parent or guardian.\\\"\\nNeither 419B.875 nor any other provision of the Juvenile Code\\u2014nor, remarkably, apparently any other Oregon statute\\u2014defines the term \\\"guardian ad litem.\\\"\\nNevertheless, as a legal term of art, the meaning of \\\"guardian ad litem\\\" is well settled. Black's Law Dictionary 713 (7th ed 1999), gives the following definition:\\n\\\"A guardian, usu. a lawyer, appointed by the court to appear in a lawsuit on behalf of an incompetent or minor party.\\\"\\nSimilarly, Webster's Third New Int'l Dictionary 1007 (unabridged ed 1993), defines \\\"guardian ad litem\\\" as \\\"a guardian appointed by a court to represent in a particular lawsuit the interests of a party who is a minor or an incompetent person.\\\" Both of those definitions comport with the only definition of guardian ad litem that we have been able to find in an Oregon appellate decision:\\n\\\"A guardian ad litem is a special guardian appointed by the court to prosecute or defend in behalf of an infant a suit to which such infant is a party. His office is to represent the interests of the infant in the litigation. Although an infant is capable of suing or being sued, his incapacity requires that he be protected and to that end the statute requires that the infant litigant should be properly represented by some one who may adequately enforce or protect his rights.\\\"\\nBenson v. Birch, 139 Or 459, 461, 10 P2d 1050 (1932).\\nThus, it is the function and responsibility of a guardian ad litem to appear on behalf of, and represent the interests of, the incapacitated person. That does not mean, of course, that the guardian ad litem \\\"steps into the shoes\\\" of the represented person for all purposes. See, e.g., Christman v. Scott, 183 Or 113, 117-18, 191 P2d 89 (1948) (\\\"The action was properly prosecuted in the name of the deranged person. The cause of action was his; and he was not divested of it when he became incompetent. The cause did not belong to the guardian ad litem\\\"). But, at least generally in the civil context, it does mean that an appearance by a duly appointed guardian ad litem constitutes an appearance by the represented person. Consequently\\u2014and most obviously\\u2014such an appearance would preclude the entry of a default on the grounds that the represented person had failed to appear. Any other result would frustrate and contravene the purpose of appointing the guardian ad litem.\\nIf those general principles are imported into the dependency context by virtue of ORS 419B.875(2), then mother did not \\\"fail to appear\\\" for purposes of ORS 419B.917. That is, the guardian ad, litem's appearance and assertion of rights on mother's behalf would constitute an appearance by mother.\\nWe discern nothing in the context of the dependency statutes, particularly including ORS 419B.917 and ORS 419B.875(2), that demonstrates that the purpose and effect of appointing a guardian ad litem for an incapacitated parent in a dependency proceeding is any different than in other contexts. We are cognizant that ORS 419B.875(1), in identifying the \\\"parties\\\" to the \\\"proceedings in the juvenile court,\\\" lists \\\"[t]he legal parents\\\" and \\\"[a] guardian ad litem appointed under subsection (2) of this section\\\" separately. ORS 419B.875(1)(b), (i). However, \\\"parties\\\" as used in that connection refers generically to persons having an entitlement to participate in the proceedings and not, particularly, to persons against whom judgment may be rendered. Thus, nothing in the statutes, and particularly ORS 419B.875(1), contradicts the general principle that the function of the guardian ad litem is to appear on behalf of, and represent the interests of, the incapacitated parent.\\nWe note, finally, that our understanding of the proper interaction between ORS 419B.917 and ORS 419B.875(2) comports with constitutional considerations. \\\"The Due Process Clause of the Fourteenth Amendment requires that parents be provided with notice and an opportunity to be heard before being deprived of parental rights.\\\" State ex rel Juv. Dept. v. Bryant, 84 Or App 571, 574, 735 P2d 5 (1987) (citing Armstrong v. Manzo, 380 US 545, 85 S Ct 1187, 14 L Ed 2d 62 (1965)). The termination proceeding must be \\\"fundamentally fair\\\"; that is, it must afford the parents an \\\"opportunity to be heard at a meaningful time and in a meaningful manner.\\\" State ex rel Juv. Dept. v. Geist, 310 Or 176, 189-90, 796 P2d 1193 (1990) (citing Mathews v. Eldridge, 424 US 319, 333, 96 S Ct 893, 47 L Ed 2d 18 (1976)).\\nState ex rel Juv. Dept. v. Evjen, 107 Or App 659, 661, 813 P2d 1092, rev den, 312 Or 526 (1991), is directly analogous to this case. There, the mother's severe mental illness had resulted in her commitment to Dammasch State Hospital two weeks before the termination hearing. By the time of the hearing, the mother was in restraints and was too unstable to be transported. Id. at 662. The trial court denied the mother's counsel's request for a continuance and, ultimately, terminated the mother's parental rights. Id. On appeal, we held that the termination proceeding was not fundamentally fair because the mother's mental illness prevented her from attending the hearing and she had no guardian ad litem to appear on her behalf:\\n\\\"It is elementary that mother has a fundamental liberty interest in her parental rights. Therefore, she must be given a meaningful opportunity to be heard before she is permanently deprived of her status as the mother of child. As [State ex rel Juv. Dept. v.] Stevens[, 100 Or App 481, 786 P2d 1296, rev den, 310 Or 71 (1990), cert den, 498 US 1119, 111 S Ct 1071, 112 L Ed 2d 1177 (1991),] and [State v.) Blum[, 1 Or App 409, 463 P2d 367 (1970),] suggest, the opportunity to be heard does not translate into an absolute right to be physically present at a parental rights termination hearing. However, it does mean that a parent must be allowed to participate in the hearing in some form. Here, mother was not capable of appearing in person and did not participate through a guardian ad litem. We hold that, under those circumstances, the termination proceeding was not fundamentally fair.\\\"\\nId. at 663-64 (emphasis in original; footnote omitted).\\nHere, a guardian ad litem was appointed for mother to address precisely the sort of due process concerns that underlay Evjen. Nevertheless, and notwithstanding the guardian ad litem's appearance and objections on mother's behalf, the court proceeded to summarily adjudicate the petition. By so proceeding, the court effectively nullified the procedural protections afforded by the appointment of the guardian ad litem. The court denied mother her statutory and constitutional entitlement to participate meaningfully in the termination proceedings. See ORS 419B.875; Evjen. That was reversible error.\\nWe reiterate: Where a guardian ad litem has been appointed for a parent pursuant to ORS 419B.875(2), and the guardian ad litem appears on the parent's behalf and objects to summary adjudication of a termination petition pursuant to ORS 419B.917(1), the juvenile court cannot summarily adjudicate the petition based on a prima facie presentation. Rather, the court must proceed to a full adversarial trial, ORS 419B.521, with the guardian ad litem appearing on behalf of, and representing the interests of, the incapacitated person. See, e.g.,Evjen; Blum.\\nReversed and remanded.\\nThe court based its decision to terminate mother's parental rights on its conclusion that the prima facie presentation by the child's attorney established the great majority of the allegations in the termination petition by clear and convincing evidence. Among those allegations were (1) \\\"mother suffers from chronic mental illness, emotional illness, and mental deficiency which are of such a nature and duration as to render her incapable of providing proper care to the child for extended periods of time\\\"; (2) mother's parenting ability is impaired by her long history of criminal activity, including periods of incarceration; (3) mother has another child who has been removed from her custody \\\"due to her inability to provide that child with minimally adequate care\\\"; (4) \\\"mother has residential, employment and relationship instability which seriously impairs her ability to care for the child\\\"; and (5) \\\"mother has an anger management problem and engages in assaultive behaviors which place the child at risk of emotional and physical harm.\\\" The juvenile court dismissed the allegation that \\\"there has been a lack of effort or an inability on the part of the mother to adjust her circumstances, conduct and conditions to make it possible for the child to safely return home within a reasonable time,\\\" because of mother's \\\"severe and significant mental illness and the inability to [gauge] her capacity because of that mental illness.\\\" Lastly, the court held that as \\\"[t]here is no legal father for this minor childf,]\\\" and as \\\"[i]t is in the best interest of this child to have the parental rights of [mother] terminated!,] the parental rights of [mother] are herewith terminated\\nThe Supplementary Local Rules for Multnomah County do not describe the procedures that apply in the presentation of a prima facie case. In response to questions at oral argument on appeal, mother's attorney stated that the procedures governing prima facie presentations were a matter of practice and that the typical prima facie case consists of petitioner's offering of the legal file and the unchallenged testimony of the DHS caseworker. In response to similar questions, counsel for the state represented that, in cases in which the court has ruled that it will proceed on the basis of a prima facie presentation, the parent's attorney typically withdraws before the state presents its case. According to the state, there is no requirement that the attorney withdraw but that it is a matter of practice because of \\\"an ethical responsibility on the part of the attorney who has had no contact with the parent and therefore cannot in good faith assert a position one way or another in response to the proceeding.\\\"\\nThe child also submitted a brief challenging mother's appeal of the termination judgment, and the state incorporated and adopted the child's arguments by reference in its brief. For purposes of simplicity, we ascribe respondents'joint arguments generically to \\\"the state.\\\"\\nORS 419B.917 was enacted in 2001 as part of House Bill 2611, which created a single set of procedural rules for use in juvenile dependency cases and in termination of parental rights proceedings. Or Laws 2001, ch 622, \\u00a7 31. Before ORS 419B.917 was enacted, the authority of a trial court to terminate parental rights by default resided in former ORS 419B.515, repealed by Or Laws 2001, ch 622, \\u00a7 57, which provided, in part, that service of summons on a parent\\n\\\"shall contain a statement to the effect that the rights of the parent or parents are proposed to be terminated in the proceeding and that if the parent or parents fail to appear at the time and place specified in the summons, the court may terminate parental rights and take any other action that is authorized by law.\\\"\\nSee State ex rel Juv. Dept. v. Mertes, 162 Or App 530, 532-33, 986 P2d 682 (1999) (noting that \\\"ORS 419B.515 is the source of the juvenile court's authority to terminate parental rights following a parent's default\\\").\\nThe amendments to ORS 419B.875, pertaining to the appointment and rights of guardians ad litem in dependency proceedings, were enacted concurrently under a separate section of HB 2611. Or Laws 2001, ch 622, \\u00a7 39, 39a.\\nHere, as noted, mother does not argue that there was any deficiency in the method of service of summons or the content of summons. Cf. State ex rel Juv. Dept. v. Kopp, 180 Or App 566, 579-85, 43 P3d 1197 (2002) (reversing trial court's denial of motion to set aside default termination judgment based on insufficiency of summons).\\nSeveral statutes and rules do, of course, refer to the appointment of guardians ad litem. For example, Rule 27 of the Oregon Rules of Civil Procedure provides that, if a minor or incapacitated person does not have a guardian, or there is no conservator for such a person's estate, the person \\\"shall appear by a guardian ad litem appointed by the court.\\\" ORCP 27 A, B; see also ORCP 7 D(3)(a)(iii) (providing that, in certain circumstances, service upon an incapacitated person is to be affected upon that person as well as \\\"upon a guardian ad litem appointed pursuant to Rule 27 B(2)\\\"); cf. ORS 20.150 (providing for recovery of costs when a party \\\"appears by a guardian ad litem\\\"). Under ORS 419B.800(1), the provisions of the Oregon Rules of Civil Procedure do not apply in juvenile court dependency proceedings.\\nSee generally 57 CJS 173-74, Mental Health, \\u00a7 271 (1992):\\n\\\"fTJhe guardian ad litem has the duty to determine the best interest of the ward, and he folly represents the rights and interests of his ward in the particular case, and his rights and powers generally extend to all matters in the particular litigation affecting the interest of his ward, in every stage of the action.\\\"\\n(Footnotes omitted.) In People in Interest of M.M., 726 P2d 1108, 1120 (Colo 1986), which also involved the appointment of a guardian ad litem for a mentally incapacitated parent in a termination proceeding, the court cogently explained the difference between the obligations of counsel and of the guardian ad litem in this context:\\n\\\"While it is the lawyer's duty to provide the parent with legal advice on such decisions as whether to contest the termination motion and whether to present particular defenses to the motion, it is the role and responsibility of the parent to make those decisions. If the parent is mentally impaired so as to be incapable of understanding the nature and significance of the proceeding or incapable of making those critical decisions that are the parent's right to make, then a court would clearly abuse its discretion in not appointing a guardian ad litem to act for and in the interest of the parent.\\\"\\nCf. Bremner v. Charles, 312 Or 274, 280-85, 821 P2d 1080 (1991), adh'd to on recons, 313 Or 339, 832 P2d 454, 506 US 975, 113 S Ct 467, 121 L Ed 2d 374 (1992) (where guardian ad litem had been appointed to appear on behalf of brain-damaged young child, it was not an abuse of discretion for trial court, notwithstanding the child's status as a party, to exclude the child from courtroom during liability phase of medical malpractice trial).\\nFor example, OES 419B.875(1) also identifies as a potential \\\"party\\\" a \\\"court appointed special advocate, if appointed.\\\" ORS 419B.875(1)(f). By direct analogy to a guardian ad litem, a court appointed special advocate has no personal substantive interest in the controversy. See ORS 419A.004(8); ORS 419A.170. Instead, as with a guardian ad litem, a court appointed special advocate's \\\"party\\\" status is limited to acting on behalf of the represented person. See ORS 419A.170(2).\\nAny other construction of \\\"parties\\\" within the meaning of ORS 419B.875(1) could yield not only incongruous, but contradictory, results. For example, in the circumstances presented here, a parent could be subject to a default judgment pursuant to ORS 419B.917(1), but his or her guardian ad litem would be entitled, independently, to proceed to litigate the merits of the termination proceeding.\"}"

or/2004147.json

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+"{\"id\": \"2004147\", \"name\": \"ALBERT T. DAISLEY, Administrator, v. S. E. HAMBELTON et al.\", \"name_abbreviation\": \"Daisley v. Hambelton\", \"decision_date\": \"1929-12-17\", \"docket_number\": \"\", \"first_page\": \"507\", \"last_page\": \"508\", \"citations\": \"131 Or. 507\", \"volume\": \"131\", \"reporter\": \"Oregon Reports\", \"court\": \"Oregon Supreme Court\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-11T00:41:27.571074+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ALBERT T. DAISLEY, Administrator, v. S. E. HAMBELTON et al.\", \"head_matter\": \"Argued at Pendleton, October 29;\\naffirmed December 17, 1929;\\nrehearing denied January 7, 1930\\nALBERT T. DAISLEY, Administrator, v. S. E. HAMBELTON et al.\\n(282 Pac. 1086)\\nFor appellant there was a brief and oral argument by Mr. George W. Cherry.\\nFor respondent there was a brief and oral argument by Mr. J. A. Burleigh.\", \"word_count\": \"187\", \"char_count\": \"1077\", \"text\": \"ROSSMAN, J.\\nWe believe that the opening paragraph of the decision in Malagamba, v. McLean, 89 Or. 807 (173 P. 1175), is sufficient to determine this suit adversely to the plaintiff; we quote:\\n\\\"This suit is based upon the theory that the real property of an estate is not subject to execution upon a judgment against the heir, until after final distribution of the estate; but such a conclusion is clearly erroneous.\\\"\\nIf any further authorities are required to warrant an affirmance of the result below the following ought to suffice: Freeman on Executions (3ded.), \\u00a7183; 17 R. C. L., Levy and Seizure, \\u00a7 64, p. 164; 18 C. J., Descent and Distribution, \\u00a7 333; 23 C. J., Executions, \\u00a7 66. The decree of the lower court is affirmed.\\nAffirmed. Rehearing Denied.\"}"

or/2009022.json

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+"{\"id\": \"2009022\", \"name\": \"TEISER v. SWIRSKY et al.\", \"name_abbreviation\": \"Teiser v. Swirsky\", \"decision_date\": \"1931-09-15\", \"docket_number\": \"\", \"first_page\": \"595\", \"last_page\": \"609\", \"citations\": \"137 Or. 595\", \"volume\": \"137\", \"reporter\": \"Oregon Reports\", \"court\": \"Oregon Supreme Court\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-11T00:29:11.577535+00:00\", \"provenance\": \"CAP\", \"judges\": \"Bean, C. J., Brown and. Band, JJ., concur.\", \"parties\": \"TEISER v. SWIRSKY et al.\", \"head_matter\": \"Argued June 19;\\naffirmed September 15;\\nrehearing denied October 20, 1931\\nTEISER v. SWIRSKY et al.\\n(2 P. (2d) 920, 4 P. (2d) 322)\\nHerbert L. Swett and 8. J. Bischoff, both of Portland (Dey, Hampson & Nelson, of Portland, on the brief), for appellant.\\nEdward A. Boyrie, of Portland (William B. Layton and Edward A. Boyrie, both of Portland, on the brief), for respondent.\", \"word_count\": \"3938\", \"char_count\": \"23776\", \"text\": \"ROSSMAN, J.\\nThis is an appeal from a decree of the circuit court which awarded judgment in the sum of $5,000 to the plaintiff, who is trustee in bankruptcy of Herman's, Inc., a corporation, upon an alleged balance due the latter upon subscriptions to its corporate stock made by the defendant Leon Bernstein and one D. Solis Cohen, now deceased, whose estate is represented by the defendant Charles Kahn. According to the complaint, the subscriptions of these two individuals were made on behalf of the defendants, Samuel Swirsky, Abe Weinstein, Moe Weinstein, and J. Weinstein.\\nThe following facts are free from dispute and reveal the issues awaiting our attention: In August, 1926, the defendants, Samuel Swirsky, Abe, Moe, and J. Weinstein, decided to form a corporation to be known as Herman's, Inc., with a capitalization of $30,000, represented by 300 shares of stock. They agreed that Swirsky should supply one-half of the needed funds and that the three Weinsteins, who are brothers, engaged in business under the firm name of Weinstein Bros., should supply the other half. For reasons which were proper the four desired to conceal their ownership of the corporate stock, and hence concluded that William Herman, son-in-law of Swirsky, should subscribe for 75 shares; that his wife, Stella, should subscribe for 75 shares more; that D. Solis Cohen, the attorney who was employed to form the corporation, should also subscribe for 75 shares; and that his office associate, Leon Bernstein, should subscribe for the balance. At the time of the formation of the corporation the subscriptions were made in the above contemplated manner. Prior to that time Swirsky had effected an agreement, in the name of William Herman, with one Phil Harris, a merchant who was rapidly approaching insolvency, to purchase Harris's fixtures for the sum of $10,000 and his lease for $5,000. Swirsky was prompted to acquire an interest in the venture because he desired to establish Herman in business. The Weinsteins' interest was due to two circumstances: (a) Harris was indebted to them, and the cash he would derive from a sale to the new corporation would enable him to discharge his debt to them; and (b) the Weinsteins, being part owners of the building where this business was located, were desirous of keeping a tenant in that storeroom. The fixtures, as part of an established going business, were worth more than $10,000. Harris's lease was accompanied with a deposit of $5,000, to assure his compliance with its provisions, and was worth the amount of the deposit. At the time of the formation of the corporation the fixtures and lease were transferred to it by appropriate instruments of conveyance and assignment. The stockholders at their first meeting, September 3, 1926, elected as directors, William and Stella Herman, D. Solis Cohen, and Leon Bernstein. Upon the same day the directors met and an instrument in the form of minutes, which purports to record the transactions that then took place, was prepared by Cohen and signed by Stella Herman as secretary, she having been previously elected to that office. When the meeting adjourned Cohen retained in his possession a volume entitled \\\"Corporation Record\\\" in which was included the certificate of incorporation and in which was recorded .the stock subscriptions, the acceptance thereof, etc., together with the corporate bylaws. He also retained the instrument in the form of minutes to which we have just referred. When the plaintiff took office he discovered that instrument fastened in an appropriate place in the above described volume. We quote from it the following:\\n\\\"Mr. Herman then stated that he had obtained a lease to the premises occupied by the corporation in the Royal Building on the southwest corner of Broadway and Morrison streets in the city of Portland, and the fixtures therein contained, and that he had obtained same for the purposes of the corporation. On motion duly seconded, the following resolution was adopted:\\n\\\"RESOLVED: that the corporation accept from William Herman, an assignment of the lease now held by him on the premises occupied by the corporation in the Royal Building on the southwest corner of Broadway and Morrison streets, Portland,. Oregon, and assume all the obligations resting in said lease upon the said William Herman, and that it receive also from William Herman the fixtures purchased by him from the former occupant of said premises, Mr. Phil Harris, to be applied upon the payment as cash for the stock of the corporation subscribed for by William Herman and Stella Herman, and that said stock be so issued as fully paid.\\\"\\nAfter Herman had transferred to the corporation the above mentioned lease and fixtures Swirsky paid to it $2,500, and in November of 1926 paid $2,500 more. The Weinstein brothers made similar payments at those same times. Four certificates of stock, each in the amount of 75 shares, were delivered to the above directors. Cohen and Bernstein handed their certificates, properly endorsed, to the Weinsteins. Immediately following its formation, the corporation commenced to do business, but was adjudged a bankrupt December 27, 1927. Later the plaintiff brought this suit, charging that the above facts indicate that a balance of $5,000 remains unpaid upon the stock subscriptions. The defendants contend that the corporation stock has been fully paid for in the manner that follows: After insisting that the preliminary proof failed to indicate that the above quoted minutes were a part of the corporate records, they submit that those recitals indicate that the fixtures only were conveyed to the corporation for $15,000 of its capital stock, and urge that the lease, which the parties stipulated was worth $5,000, entitles them to a credit of $5,000 more. By the addition of these two sums to the two $5,000 cash contributions they account for $30,000, the capitalization of the corporation.\\nSpecifically, the defendants argue: (1) That the proof failed to show the alleged minutes were ever adopted as such by the directors; (2) that the alleged minutes .are ambiguous in their references to the lease, and that the parol evidence submitted by the defendants shows that they are entitled to a credit of $5,000 on account of the assignment of the lease; (3) that corporate minutes establish only prima facie the truth of their recitals, and that their contents may always be impeached by parol evidence collaterally. Defendants submit that their parol evidence shows that the parties agreed the fixtures were worth $15,000, and the lease $5,000, and that such credits should be allowed upon the conveyance of those items to the corporation.\\nIn addition to the foregoing contentions, the appellant Swirsky argues: (1) That the liability upon the stock subscriptions was not joint, and that since the minutes indicate full payment of the Herman stock no liability can be attached to Swirsky; (2) that the above facts show that the corporation received full value for all of its stock; and (3) that in the absence of any allegations and proof of fraud the above facts entitle the defendants to an order of dismissal.\\nWe shall consider these contentions in the above order. The defendants concede that the aforementioned minutes (1) bear the signature of Stella Herman; (2) that the directors had elected her to the office of secretary; (3) that the minutes were written by Mr. Cohen; (4) that the directors held a meeting September 3,1926, at the conclusion of which Cohen requested Mrs. Herman's signature to the alleged minutes; (5) that all other recitals in the alleged minutes correctly state the events which transpired; (6) that at the aforementioned directors' meetings the fixtures and lease, together with their values, were discussed by those present; (7) that the purpose of the meeting was to effect the organization of the corporation, the acquirement of these items of property, and the issuance of stock in- payment of them; (8) that following the meeting the corporation treated the lease and fixtures as its own; and (9) that no other meeting of the directors or stockholders was ever held. The defendants in support of their contention that the alleged minutes have not been shown to constitute any part of the corporate records, point out (a) that the proof did not show that the minutes were ever read for approval before a meeting of the board of directors; (b) that the alleged minutes remained in the possession of Cohen and not in the possession of the secretary, nor upon the corporation's premises; and (c) that the proof shows that on September 3, 1926, no formal action by the submission of a resolution and a vote thereon was taken.\\nIt is the duty of the secretary of a corporation \\\"to keep a fair and correct record of all the official business of the corporation\\\": Section 25-213, Oregon Code 1930. Annual meetings of the board of directors are contemplated by our laws: Section 25-215, Oregon Code 1930. It is agreed that no other record was kept of the meeting of September 3, 1926, than the above. The testimony of Mr. Cohen who prepared the above writing shows \\\"the minutes were dictated at the time of the meeting.\\\" He added, when his attention was directed to the resolution as set forth in the challenged minutes, \\\"I guess that is just as it was.\\\" There can be no serious doubt that Cohen was employed by all members of the group to do all things necessary to create the corporation. Herman testified that Cohen was \\\"my attorney.\\\" Swirsky testified that all negotiations and conferences preceding the purchase of the lease and fixtures, and preliminary to the formation of the corporation were held in Mr. Cohen's office. He also testified that the parties fully informed Cohen upon all details so as to enable him to draft the necessary documents. In fact, it seems from Swirsky's testimony that Cohen was intrusted by him with the responsibility of paying the purchase money to Harris. The answer, in which Swirsky joined, admits without any qualification whatever, the following averment of the complaint:\\n\\\"That D. Solis Cohen and Leon Bernstein had no actual financial interest in said corporation, but subscribed for 75 shares of stock, respectively, at the request of and pursuant to instructions received from the defendant Samuel Swirsky and the defendants Abe Weinstein, Moe Weinstein and J. Weinstein;\\\"\\nThus it appears from the testimony and admission of Swirsky that in the formation of the corporation Cohen followed his directions. However, Swirsky directs our attention to the following allegation, contained in the new matter appearing in the answer:\\n\\\"In fact the said Cohen and Bernstein subscribed to said stock as an accommodation to the defendants Weinstein for the purpose of concealing the stock interest of the said Weinsteins, and that in reality said stock subscriptions of said Cohen and Bernstein were made in behalf of said defendants, Abe Weinstein, Moe Weinstein and J. Weinstein.\\\"\\nIt will be observed, however, that this averment does not negative the admission that Cohen acted \\\"pursuant to instructions received from defendant Samuel Swirsky .\\\" But, even if the two were inconsistent, the admission would prevail: 49 C. J., Pleading, p. 119, \\u00a7 112. But if Swirsky after having made the above admission in his pleading intended to deny that Cohen was his agent in the formation of the corporation, one would expect to find in his testimony some express declaration upon that subject. No such denial appears anywhere in his testimony. In fact, a careful reading of the evidence readily induces the belief that Swirsky, like the other interested parties, regarded Cohen as an attorney who was acting for all. We come now to the relationship between the Weinsteins and Cohen. The above quoted portion of the complaint was also admitted by them because all defendants united in the one answer. Hence, the above averment of the answer is also chargeable to them. Alex Weinstein testified that the relationship between himself and Mr. Cohen was so cordial that \\\"I considered him almost like a father to me. ' '\\nFamiliar rules of agency and of evidence, which we need not review herein, when applied to the above facts, demand the conclusion that the challenged minutes were properly identified. See, for instance, Lowry National Bank v. Fickett, 122 Ga. 489 (50 S. E. 396). They constituted the declarations or voice of the corporation. It was not necessary that Mrs. Herman, the secretary of the corporation, should have penned the minutes with her own hand. It was entirely proper for her to adopt the record as written by Mr. Cohen. The fact that the minutes were not read by the group Before Mrs. Herman attached her signature likewise is an ineffective objection. Both Cohen, their author, and Mrs. Herman, who signed them, were directors. The by-laws of the corporation provide: \\\"The officers herein named shall perform the regular and ordinary duties which are usually those of a corporation, to wit: the secretary as taking care of the minutes and general business.\\\" All interested had an opportunity to read the minutes if they so wished, and all knew that Mrs. Herman had signed them. One year hence another meeting should have been held, in compliance with our statutes, at which these minutes would ordinarily have been read. Not only those twelve months but three months more passed before any criticism of the minutes was voiced. Apparently no effort was ever made to alter them, even after the alleged error was discovered. The fact that Mr. Cohen in the bankruptcy proceedings, who was then still a director of the corporation, used those minutes and referred to them in the manner which we have already indicated, removes all remaining objection. We are satisfied that the minutes constitute a part of the corporate records.\\nThe defendants, however, argue that the minutes ' reference to the lease is ambiguous and claim that this specific part mentions no quid pro quo which the corporation was to give in consideration of the assignment of the lease. They contend that a proper construction of the minutes indicates that 150 shares of corporate stock was to be issued in satisfaction of the Hermans' subscription upon conveyance of the fixtures only. In the construction of an instrument the court must endeavor to place itself in the situation occupied by the parties when they employed the challenged language. The surrounding circumstances are always employed and the document must be read in the light of them: 6 B. C. L., Contracts, p. 849, \\u00a7 239. This being true, it seems to us that this court, like any individual intrusted with the duty of carrying into effect the provisions of the resolution and knowing that the Hermans had subscribed for only $15,000 worth of stock and had paid only $15,000 for the lease and fixtures, should not find any difficulty with that instrument. Its language construed in the light of those circumstances indicates that $15,000 of stock should be delivered upon delivery of both the lease and the fixtures.\\nNext, it is contended that the minutes establish only prima facie the truth of their recitals and that the evidence which they supply may be impeached col laterally. \\\"We deem it unnecessary to express an,opinion upon the troublesome problem whether such minutes are protected by the Best Evidence Rule because it seems to us that the impeaching testimony upon which the defendants rely fails to accomplish the result desired by them. We depend much upon the findings of the circuit court judge whose careful consideration of this case is revealed not only by the transcript of the trial but also by his memorandum decision. We have, however, read and considered with much deliberation the testimony, exhibits, and the very able briefs of counsel, but find ourselves in accord with the conclusions of the circuit court. Beyond referring to the two following items, we shall not set forth a further review of the evidence. Mr. D. Solis Cohen, the attorney for the aforementioned group, was a lawyer of unusual ability, of wide experience, and a man of sterling character. The group made him fully acquainted with their plans after which he prepared the instruments transferring the lease and fixtures from Harris to Herman, and from the latter to the corporation. Thus he had opportunity to acquaint himself with the details of the pending transaction. He also prepared the articles of incorporation, the minutes reciting the election of directors, etc. Next, he took office as one of the directors and then prepared the challenged minutes. Finally, he testified before the referee affirming the truth of the recitals in the minutes. According to the testimony of one of the Weinsteins and one of their present attorneys, the two of them spoke to Mr. Cohen immediately following his quitting of the witness stand and inquired whether he did not feel that the minutes were in error. What followed is significant \\u2014 he did not return to the witness chair to make any alterations in his testimony.\\nAnother significant fact is the circumstance that in the corporation ledger and journal the entries concerning the fixtures and lease are undated, and the entry in the ledger of a value of $15,000 for the fixtures plainly shows that $10,000 was first written as the value of that item. No explanation was made by any one of this alteration.\\nIt thus appears that an able, experienced attorney, well acquainted with his clients' plans, and who sustained to some of them at least an unusually friendly relationship, drafted these minutes. Later, when his attention was directed to them, affirmed their accuracy. It is our opinion that the parol evidence submitted by the defendants fails* to overcome the effect of the corporation minutes.\\nSince Swirsky, Alex Weinstein (as the representative of his firm), Cohen and Bernstein were present at the time the minutes were presented by Cohen and received the signature of the secretary, those minutes were admissible as evidence against these defendants: Thompson on Corporations (3d Ed.), \\u00a71966, and note 66 A. L. R. 1328.\\nWe come now to the contention of the appellant Swirsky that the liability is not joint. He predicates this argument upon a contention that the evidence failed to disclose any authority in Cohen to subscribe for stock in his behalf. We have already referred to admissions made by the answer which conceded the truth of that portion of the complaint which averred \\\"That D. Solis Cohen and Leon M. Bernstein * \\u2022 subscribed for 75 shares of stock respectively at the request of and pursuant to instructions received from defendant Samuel Swirsky We have also referred to the testimony of Swirsky. We add the following excerpt taken from the testimony of Alex Weinstein (the reference is to Cohen) : \\\"A. He was not only acting for me but for Mr. Herman and Mr. Swirsky.\\\" We conclude that this contention is without merit.\\nWe have also examined with care the two remaining propositions presented by Swirsky. We believe, however, that they present no reason for overturning the result reached in the circuit court. Our conclusions as to the facts, stated above, sufficiently indicate our reasons.\\nThe decree of the circuit court will be affirmed. Costs will be allowed to neither party.\\nBean, C. J., Brown and. Band, JJ., concur.\\nPetition for rehearing denied October 20, 1931\"}"

or/2010927.json

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+"{\"id\": \"2010927\", \"name\": \"GUTHRIE v. FRANK et al.\", \"name_abbreviation\": \"Guthrie v. Frank\", \"decision_date\": \"1935-03-26\", \"docket_number\": \"\", \"first_page\": \"658\", \"last_page\": \"664\", \"citations\": \"149 Or. 658\", \"volume\": \"149\", \"reporter\": \"Oregon Reports\", \"court\": \"Oregon Supreme Court\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-11T02:06:31.647512+00:00\", \"provenance\": \"CAP\", \"judges\": \"Rossman, J., not sitting.\", \"parties\": \"GUTHRIE v. FRANK et al.\", \"head_matter\": \"Argued March 5;\\naffirmed March 26, 1935\\nGUTHRIE v. FRANK et al.\\n(42 P. (2d) 913)\\nGeo. B. Guthrie and MacCormac Snow, both of Portland (P. J. Gallagher, of Portland, on the brief), for appellant.\\nHerbert L. Swett, of Portland (Dey, Hampson & Nelson, of Portland, on the brief), for respondents.\", \"word_count\": \"1720\", \"char_count\": \"10268\", \"text\": \"BELT, J.\\nThis is a creditor's bill wherein the plaintiff as receiver seeks to follow certain assets of the Gordon Mortgage Co., a corporation, and to apply the same in satisfaction of a judgment obtained against such company in May, 1931. During the same month a writ of execution was issued and a return nulla bona made thereon. Herbert L. Frank, Sam G. Gordon, and Ida Ruth Gordon are made defendants by reason of an alleged conspiracy whereby the assets of the above corporation were depleted to the injury of creditors.\\nThe facts out of which this controversy arose are as follows: Sam Gordon and his sister-in-law Ida Ruth Gordon were engaged as copartners, in the city of Portland, in the business of building and selling standardized houses on long term instalment contracts. They begun with little capital but, through remarkable industry and ability, developed a lucrative business. About 21 salesmen were employed and over 400 houses constructed. An office manager and a sales manager were each paid $8,000 per year. Sam Gordon conceived the idea that cheap standardized houses could be constructed according to detailed plans similar to the method in which steel structures were built. Each piece of lumber was lettered and numbered thus enabling expert nailers to construct a house at comparatively small cost. The business developed to such an extent that each of the Gordons was enabled to draw an average salary of $1,000 per month. Herbert L. Frank, who had gained quite a reputation as sales manager in a large plumbing business, became interested in the business enterprise in which the Gordons were engaged. After a careful and extended audit of the partnership business by an expert accountant, showing net assets between $150,000 and $200,000, Frank invested therein the sum of $25,000. The Gordons executed their promissory note as evidence of such indebtedness. Frank worked two or three months with the Gordons in order to learn the details of the business and get his bearings. After Frank came into the business he and the Gordons each drew a salary of $500 per month.\\nIn 1926 the Gordon Mortgage Co. was incorporated with a capital stock of $75,000. The 750 shares of stock, each of the par value of $100, were subscribed for equally by the Gordons and Frank. The assets of the copartnership were transferred to the corporation as consideration for the issuance of 500 shares to the Gordons. Frank cancelled his note of $25,000 \\u2014 which the corporation had assumed \\u2014 f or the 250 shares issued to him it will be observed that this close corporation at the time of its organization had a very substantial surplus if the audit of the expert accountant is accurate. It was orally agreed that the Gordons would purchase the stock from Frank if he became dissatisfied with the business. Sam Gordon was elected president; Ida Ruth Gordon, vice president; and Herbert L. Frank, secretary-treasurer. The principal business of Sam Gordon was to supervise the construction of the buildings. Ida Ruth Gordon \\u2014 who was a lawyer \\u2014 examined the abstracts of title and did various other legal work connected with the business. Frank had supervision over the salesmen. He was the supersalesman. Business continued to be good. The company was in excellent financial condition and had a line of credit with plain tiff's predecessors in interest, the American Exchange Bank, amounting to $6,000. It also had a similar line of credit with the Hibernia Commercial & Savings Bank. About 200 new houses were constructed while Frank was connected with the company. Contention, however, arose between Sam Gordon and Frank relative to the type of house that should be constructed. This controversy finally terminated in a decision whereby Frank was to withdraw from the company.\\nHence, on February 3, 1927, Frank sold his stock to the Gordons for $25,000, payable in 25 monthly installments of $1,000 each. Under the terms of an escrow agreement with the United States National Bank, all the stock of the company was held as collateral security for payment of the note executed by the Gordons. When Frank sold his stock and retired from the company a nominal share of stock was issued to Vera Gordon and she was elected director in his place. On the same day, but after the withdrawal of Frank as director and stockholder, the board of directors unanimously voted to increase the salaries of Sam Gordon and Ida Buth Gordon from $500 to $1,000 per month. Frank was paid his salary of $500 for the month of February.\\nSixteen installments, each in the sum of $1,000, were paid to the United States National Bank \\u2014 which remitted to Frank. The last payment on principal was made on July 10, 1928, at which time the Gordons discontinued the salaries of $1,000 per month as the business would not justify it. Checks were drawn in the name of the Gordon Mortgage Co., but the amounts thereof were charged against the salary accounts of the Gordons. The principal and interest thus paid to Frank aggregated $18,265.28. The loans which the American Exchange Bank made to the Gordon Mortgage Co. in June and July, 1928, aggregating $6,000\\u2014 and evidenced by promissory notes \\u2014 constitute the basis of this suit.\\nIt is the theory of the plaintiff, as disclosed by the complaint, that Frank had become dissatisfied as a stockholder in the company and, in order to withdraw his investment therein, entered into a scheme or conspiracy with the Gordons whereby they, in form, agreed to buy his stock with the understanding that he would be paid from the salary increase of $1,000 per month. In the trial, however, the plaintiff apparently abandoned the theory that the stock was sold to the company and not to the Gordons. The plaintiff asserts that the salary increase was unreasonable and wholly unjustifiable, being a mere subterfuge to deplete the assets of the corporation for the individual benefit of the directors. In other words, the plaintiff contends that the corporation received no consideration for the money paid to Frank for the purchase of his stock and that, therefor, all of the defendants who participated in this scheme to deplete the assets of the corporation to the injury of creditors should respond in a sum equal to the amount due on the note which has come into his hands as receiver.\\nA careful analysis of the facts convinces us that the sale of stock.was a bona fide transaction. Frank did not withdraw his investment because of anticipation of the company's failure. In February, 1927, the corporation was in sound financial condition. There was no contemplation of insolvency. About 150 houses were constructed after Frank withdrew from the company. The Gordons had a large investment at stake. If Frank believed the business was going on the rocks why was he willing to take as collateral security the stock of the company? What motive would the Gordons have in entering into a conspiracy with Frank to permit him to withdraw his investment if they believed the company was doomed to failure? The good faith of the parties is evidenced further by the fact that Frank brought action against the Gordons to collect the balance due on their note.\\nThe credit of the company was not impaired until the fall of 1929. It will be recalled that the American Exchange Bank extended substantial credit to the corporation as late as June, 1928. Was it not advised as to the general financial condition of this business concern? The failure of the Gordon Mortgage Co. was the result of unusual business conditions. The stock market crash of 1929 had deadly effect on the real estate market and the equities of the company in properties sold were swept away with surprising rapidity. The mere fact, however, that insolvency finally resulted is no evidence of its existence at the time this stock was purchased from Frank in 1927. In determining whether there was a wrongful diversion of corporate assets the conduct of the Gordons and Frank is to be reviewed in the light of the conditions existing at the time the transaction was consummated.\\nIt is no doubt true, that the Gordons expected to pay the monthly installments to Frank from the salary increase. It does not follow, however, that plaintiff, as a general creditor, has any cause to complain of such plan if, in fact, the salaries were reasonable. Even if it be assumed that the corporation was insolvent at the time of the salary increase, the Gordons would be entitled to reasonable compensation for their services. If the corporation received consideration for the money thus paid to Frank, then, of course, there was no wrongful depletion of corporate assets. Notwithstanding the claim of unreasonable salaries is the very foundation of plaintiff's grievances, there is absolutely no evidence tending to support such contention. On the contrary, the defendants have established by uncontradieted evidence that the salaries paid to the Gordons were reasonable in view of the character of the services rendered and the scope and importance of the business in which they were engaged.\\nA general creditor has no right to complain about the amount of -salaries fixed by a board of directors) unless at such time the corporation is insolvent and the salaries paid are so excessive as to amount to a badge of fraud. Courts, in the absence of fraud, are reluctant to int\\u00f3rfere with the internal affairs of a corporation based on the complaint of general creditors. Hence, a wide discretion is vested in a board of directors to determine the amount of salaries to be paid to officers of the company.\\nThe conclusion of this court that the salaries'.paid to the Gordons were reasonable makes it unnecessary to consider the numerous authorities cited pertaining to the trust fund doctrine. Clearly, none of them are applicable to the facts in this case.\\nIt follows that the decree of the circuit court dismissing plaintiff's suit is affirmed. Neither party will recover costs or disbursements.\\nRossman, J., not sitting.\"}"

or/2023335.json

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+"{\"id\": \"2023335\", \"name\": \"In the Matter of the Estate of LOTTIE MAY McLAIN. SUSIE SUITOR v. FIRST NATIONAL BANK OF HOOD RIVER, Administrator\", \"name_abbreviation\": \"Suitor v. First National Bank\", \"decision_date\": \"1928-09-25\", \"docket_number\": \"\", \"first_page\": \"456\", \"last_page\": \"466\", \"citations\": \"126 Or. 456\", \"volume\": \"126\", \"reporter\": \"Oregon Reports\", \"court\": \"Oregon Supreme Court\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T21:53:43.897918+00:00\", \"provenance\": \"CAP\", \"judges\": \"Coshow, Bean and Rossman, JJ., concur.\", \"parties\": \"In the Matter of the Estate of LOTTIE MAY McLAIN. SUSIE SUITOR v. FIRST NATIONAL BANK OF HOOD RIVER, Administrator.\", \"head_matter\": \"Argued at Pendleton May 9,\\naffirmed September 25, 1928.\\nIn the Matter of the Estate of LOTTIE MAY McLAIN. SUSIE SUITOR v. FIRST NATIONAL BANK OF HOOD RIVER, Administrator.\\n(270 Pac. 534.)\\nFor appellant there was a brief over the name of Mr. Edwin, M. Parker, with an oral argument by Mr. George R. Wilbwr.\\nFor respondent there was a brief over the name of Messrs. Carey & Kerr, with an oral argument by Mr. C. A. Hart.\", \"word_count\": \"2568\", \"char_count\": \"14735\", \"text\": \"RAND, C. J.\\nThis is an appeal from a judgment against the First National Bank of Hood River, Oregon, as administrator of the estate of Lottie May McLain, deceased, for services alleged to have been performed for decedent by the claimant, Susie Suitor, during the six years immediately preceding decedent's death, which occurred on October 31, 1925. During the six years in question decedent, a widow, had been engaged in running a boarding and lodging house at Hood River, Oregon, and claimant, who was decedent's aunt, had been living with her at said boarding and lodging house. Besides these two, the family consisted of a young girl whom decedent was raising. After the death of decedent, who died intestate, claimant presented to the administrator a duly verified claim and, upon its rejection, pursuant to Section 1241, Or. L., she presented it to the County Court for allowance, where, after a hearing, it was again rejected. - An appeal was then taken to the Circuit Court and, after a trial by the court without a jury, claimant had judgment for $2,880, the full amount of her claim.\\nThere was no question raised in the trial court as to the performance or value of the services. All of the witnesses who testified upon that subject stated that the services were reasonably worth $40 per month and the memorandum opinion of the trial judge recites that the attorneys for the administrator, while denying claimant's right of recovery, stated in open court that if claimant was found to be entitled to recover at all, then the services were reasonably worth $40 per month, and no one questions that fact here. The contention is that because of the blood relationship existing between them, that of aunt and niece, and of their having been members of the same household at the time the services were rendered, the performance of the services raised no implied promise to pay for them and that, in the absence of an express contract to pay, claimant cannot recover.\\nThe general rule is that where one person at the \\u2022 request of another performs beneficial services for him, unless it is agreed or it can be so inferred from the circumstances that the services were to be rendered without compensation, the law, in the absence of any express contract, will imply a promise on the part of him for whom the services were rendered to pay for them what they were reasonably worth.\\nThis rule, however, is subject to the further rule that ordinary services rendered each other by members of the same family living in the same household are presumptively gratuitous and generally, where there are dealings between those of the same family or those closely related by blood or marriage and living together in the same household, a promise to pay will not be implied unless it is shown either by the circumstances surrounding the transaction, or the nature of the services performed, or in some other manner, that there was an expectation that the services, when rendered, were to be paid for. In cases where a promise to pay will not be implied as a matter of law an actual agreement must be proven. The relation of parent and child, brother and sister, or the like, existing between persons living together in the same household creates a strong presumption that no payment or compensation was intended to be made for services rendered by one to the other beyond that received at the time they were rendered. To overcome this presumption, as was said in Hall v. Finch, 29 Wis. 278, 286 (9 Am. Rep. 559);\\n\\\" The evidence must be clear, direct and positive that the relation between the parties was not the ordinary one of parent and child, or of brother and sister, but that of debtor and creditor, or of master and servant. To establish this new relation, it is obvious that some \\u2022 arrangement or contract to that effect must be shown. No man is to be made debtor without his knowledge or assent, or under circumstances where he has no reason to expect that such is his position or liability. .\\\"\\nIt is also a well-settled principle of law that wages for domestic services, such as those involved here, are presumed to be paid at stated intervals and that when a claim for such services is presented against a decedent's estate, extending over any great length of time, the burden is upon the claimant to rebut the presumption. It is, however, a presumption of fact which may be rebutted by competent evidence but until satisfactory evidence is produced, the presumption prevails and the claim must be disallowed: Cummiskey's Estate, 224 Pa. 509 (73 Atl. 916, 132 Am. St. Rep. 787); Winfield v. Beaver Trust Co., 229 Pa. 530 (79 Atl. 138).\\nThe evidence shows that prior to claimant's going to live with decedent and commencing to work for her she was living at the home of her son in the City of Portland, and that while on a visit to the farm where decedent was then living with her husband, since deceased, decedent and claimant entered into a contract with each other whereby it was agreed that claimant should enter the services of decedent and be paid wages therefor, but there was no stipulation as to the amount of the wages or that the wages should be paid at stated intervals. The evidence further shows that claimant always had money on deposit in the bank and that during all of the time while working for de cedent she paid for her own clothing and other personal expenses from her own moneys. The evidence further shows that claimant worked for decedent some twelve years and up to the time of decedent's death had received no wages except $20 which was paid to her while living with decedent on the farm; that decedent's husband died in January, 1919, and that up to that time decedent and her husband were operating a small farm of which they were tenants, and that their income therefrom was very small. It further shows that decedent's husband, before his death, had inherited an interest in some farm land in Canada and also an interest in some real property in Portland, and that upon his death this property descended to decedent as his sole heir; that shortly after his death, decedent sold her interest in the Canadian land and with the proceeds purchased a home in Hood River, Oregon, where she conducted a boarding and lodging house for the six years for which compensation is sought. The evidence further shows that decedent's health was not good and that claimant did most of the work in the boarding and lodging house, and that this work was very exacting and arduous, and that she had also worked very hard while upon the farm. The evidence further shows that decedent often stated to claimant that she did not have the money to pay her wages but that she would pay her as soon as she could sell and dispose of her Portland property; that claimant promised her that she would wait until decedent could dispose of the property. There seems to have been a very strong affection and regard between these two women and a willingness upon the part of claimant, who was much older than decedent, to extend credit to decedent. Claimant's testimony was strongly cor roborated by the testimony of numerous witnesses both as to the nature and extent of the services and as to declarations made by decedent that she was going to pay claimant as soon as she disposed of her Portland property.\\nWhile the relation between these parties was that of aunt and niece, this relationship was not one which imposed upon one of them the duty of support and upon the other the duty of service, nor was claimant dependent upon her niece for a home. She had some means of her own and she had a good home with her son with whom she had been living before entering into service for decedent and before becoming a member of decedent's family. Since this arrangement was made before she became a member of decedent's family, there is no presumption that such services were intended to be gratuitous. The rule in respect thereto is stated in 3 Page on Contracts, Section 1454, as follows:\\n\\\"If persons who are related are not members of the same family when they enter into an arrangement under which one of them is to render services to the other and if as a result of such arrangement they live together as members of the same family and render services one to the other, there is no presumption that such services are intended to be gratuitous.\\\"\\nThat decedent did not expect claimant to render such services without compensation is abundantly proved by declarations made to others by decedent, as well as by the testimony of claimant, and hence since the services were not rendered or accepted under an expectation on the part of either that they were to be gratuitous, the law, even in the absence of an express contract, would imply a promise to pay for them, for they were of a character for which com pensation would ordinarily be made as between persons who are not related and as between persons who are related where there was an expectation on the part of the one for whose benefit they were rendered and of the one rendering the services that compensation should be made by one and received by the other.\\nThe fact that the evidence shows that the amount of compensation to be paid for the services was not agreed upon is of no importance, since, if claimant is entitled to recover at all, then she is entitled to recover the reasonable value thereof: Sargent v. Foland, 104 Or. 296 (207 Pac. 349).\\nDefendants contend that there was not sufficient evidence other than that of claimant to entitle her to recover. By Section 1241, Or. L., it is provided that \\\"no claim which shall have been rejected by the executor or administrator, as aforesaid, shall be allowed by any court, referee, or jury, except upon some competent or satisfactory evidence other than the testimony of' the claimant.\\\" Under this provision the testimony of a claimant alone is not sufficient to establish a claim against the estate of a deceased person which has been rejected by the executor or administrator. There must be other material and pertinent testimony supporting or corroborating the testimony of the claimant sufficient to go to the jury and support a verdict. But this does not mean that the claimant is not a competent witness in his own behalf or that his testimony shall be entirely ignored or disregarded. It shall be considered as any other testimony in the case but with this limitation\\u2014that it alone is not sufficient to establish the claim. The provision \\\"is practically an enactment of the English equity rule, which is that ' a pecuniary demand against the estate of a deceased person will not be considered and established by the oath of the person making snch claim, unsupported by any other evidence.' \\\" Goltra v. Penland, 45 Or. 254, 265 (77 Pac. 129). \\\"There must be other material and pertinent testimony supporting that given by the claimant sufficient to go to the jury, and on which it might find a verdict.\\\" Branch v. Lambert, 103 Or. 423, 434 (205 Pac. 995).\\nThe trial court held, and we think correctly, that there was sufficient corroborating and supporting evidence by witnesses other than the claimant herself which, if the case had been tried by a jury, would have been sufficient to entitle them to find a verdict for claimant. Under our statute in a law action where a jury is waived and the cause is tried by the court, the trial judge is the trier of all questions of fact and his findings of fact have the force and effect of a verdict. Upon an appeal this court is bound by such findings, if there is competent and material evidence to sustain them. The weight and credibility to be given to the evidence, the application of all presumptions of fact, the inferences to be drawn and the deductions to be made from the evidence are all questions for the trial court, and however much in any particular case this court might be inclined to disagree with those findings, if the trial was de novo, they are conclusive if based upon material and competent evidence. In passing upon the law and facts of this case, the lower court said:\\n\\\" It is my view that whenever two people live in the family relation, pnrely and simply, with the ordinary incidents that accompany such relationship, and no extraordinary incidents exist, then the presumption that recompense was intended is negatived and whatever services were rendered were done by reason of such relationship and were gratuitous; but when the incidents and circumstances are not those 'which are ordinarily associated with such relationship, ' then the presumption of an implied agreement to pay attaches. The evidence is overwhelming that Mrs. Suitor worked hard and laboriously, and her services were not limited to the ordinary things which one member of a family is glad to do for another, but all the witnesses practically agree that her hours of work were long and that the kind of work which she did was that usually performed by servants who demand and receive compensation. It is sufficient to say that this court is convinced that the services rendered and the work done by Mrs. Suitor made it possible for Mrs. McLain to conduct her boardinghouse, and without such services it would have been impossible for her to have done so. To some degree, though probably not as much, the same statement would apply to Mrs. Suitor's work upon the farm before they moved into town. With the conclusion thus reached as to the kind and character of Mrs. Suitor's services, it is my belief that they were not of the kind which are ordinarily associated with the relationship existing between kinsfolk, and that, therefore, they are not included in the doctrine of relationship but bring this case under the presumption, well established, that a contract to pay is presumed from the acceptance of beneficial labor, unless the relationship of the parties is such as to forbid the presumption.\\\"\\nWe think that the court's view of the law of the case was proper and that the evidence was sufficient to sustain the findings and that, under the facts of this case, the ordinary implication that the services were to be paid for at their fair value was the only implication that could be drawn from the evidence in the case. For these reasons the judgment appealed from must be affirmed. Affirmed.\\nCoshow, Bean and Rossman, JJ., concur.\"}"

or/2067861.json

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+"{\"id\": \"2067861\", \"name\": \"STATE OF OREGON, Respondent, v. DENNIS DEAN KERSTING, Appellant\", \"name_abbreviation\": \"State v. Kersting\", \"decision_date\": \"1981-02-17\", \"docket_number\": \"No. C 79-01-30263, CA 15260\", \"first_page\": \"461\", \"last_page\": \"476\", \"citations\": \"50 Or. App. 461\", \"volume\": \"50\", \"reporter\": \"Oregon Reports, Court of Appeals\", \"court\": \"Oregon Court of Appeals\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-11T00:48:22.753467+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Richardson, Presiding Judge, and Thornton and Buttler, Judges.\", \"parties\": \"STATE OF OREGON, Respondent, v. DENNIS DEAN KERSTING, Appellant.\", \"head_matter\": \"Argued and submitted November 26, 1980,\\naffirmed February 17,\\nreconsideration denied March 26,\\npetition for review allowed April 21, 1981 (290 Or 853)\\nSTATE OF OREGON, Respondent, v. DENNIS DEAN KERSTING, Appellant.\\n(No. C 79-01-30263, CA 15260)\\n623 P2d 1095\\nPhillip M. Margolin, Portland, argued the cause and filed the briefs for appellant.\\nKaren H. Green, Assistant Attorney General, Salem, argued the cause for respondent. With her on the brief were James M. Brown, Attorney General, John R. McCulloch, Jr., Solicitor General, and William F. Gary, Deputy Solicitor General, Salem.\\nBefore Richardson, Presiding Judge, and Thornton and Buttler, Judges.\\nBUTTLER, J.\", \"word_count\": \"5355\", \"char_count\": \"32051\", \"text\": \"BUTTLER, J.\\nDefendant appeals his conviction for the murder of a young woman. He assigns as error the admission in evidence of (1) expert testimony regarding identification of hair by microscopic comparison, (2) testimony regarding a statement made by defendant to Jim Juan, and (3) a photograph of the victim. Defendant also challenges (4) the trial court's refusal to allow certain cross-examination of one of the state's witnesses, and (5) the denial of his motions to suppress and dismiss based on the destruction of blood samples found in his tow truck. We affirm.\\nShellie Szabo met her death by being stabbed over 15 times in the early morning hours of November 26,1978. Rope burns were found on her wrists and several human hairs and rope fibers were found on her person. Time of death was placed at shortly after 3 a.m. Ms. Szabo worked as a prostitute and generally served well-to-do businessmen. Her most common modus operandi was to arrange to meet a customer at a restaurant, after which they would go to a motel. She charged a minimum of $50.\\nMs. Szabo was pursuing her occupation on the night of the murder. She was seen downtown near a phone booth at about 2:10 a.m. The switchboard operator at the motel where she and her boyfriend were staying testified that Ms. Szabo called for her boyfriend at 2 a.m. that night. A businessman, who was both a friend and a customer of the victim, was out late that night. On his way home he decided to try to find Ms. Szabo because she had left several messages on his telephone answering device during the preceding few days. He drove to a restaurant he knew she frequented, but did not find her. He decided to try another restaurant; while en route, and as he approached the intersection of Grand and Holladay at about 3:05 a.m., he noticed a tow truck in front of him in the lane to his left. As he pulled alongside the truck, he saw Ms. Szabo sitting in the passenger seat. She looked directly at him from a distance of about six feet but she did not wave to him when she saw him, which he thought unusual. She had a look of terror on her face and was signaling to him by moving her head and shoulders, and thus appeared to be bound. The tow truck turned left at the intersection, and although Ms. Szabo's friend turned around to follow the truck, he lost it in the fog. He continued unsuccessfully to look for her and finally went home at 5 a.m. He was so disturbed by the incident that upon arriving home he woke his wife to tell her about it. The next day, when he discovered that Ms. Szabo had been murdered, he reported the incident and gave a description of the truck to the police.\\nThe description of the tow truck led the police to Gerlock Towing, where defendant worked. Upon searching the truck assigned to defendant, the police found small amounts of encrusted blood and a rope with drops of blood on it. Vacuum sweepings of the truck's interior contained fibrils which were consistent with the material of the victim's sweater. The rope fibers found on the victim were consistent with the rope in the truck. A luminol test performed on the truck seat indicated that a large amount of blood had been present on the seat and seat-back.\\nThe police first contacted defendant on November 29th for questioning. Defendant is a knife collector who enjoyed obtaining and carrying knives. Defendant was searched and five pocket knives were found on his person. Police seized 13 more knives upon searching defendant's home.\\nAt first, defendant denied any knowledge of Ms. Szabo or her murder. He stated that he left home the night of the murder at about 12:30 a.m. to buy a Coke. Afterward, he went by two friends' homes, but when he found no one home he drove to a restaurant at Ninth and Burnside where he stayed for about two hours, watching people from his truck. He then drove home about 3 a.m.\\nThe next day when defendant was questioned again, he admitted having seen Ms. Szabo at the restaurant and having engaged her for a sexual act. He said she agreed to perform oral sex in his truck for $20, paid for with two fives and a ten dollar bill, and that they drove about four blocks away to complete the act. After about 20 minutes he drove her back to within two blocks of the restaurant. He stated he last saw her walking toward the restaurant in her socks, carrying her shoes.\\nDefendant further stated that he had not cleaned the inside of his truck for six or seven months, although he had washed the outside the previous Friday. Defendant testified at trial, however, that he cleaned the inside of his truck every Friday in order to get his paycheck, and denied having told the police that he had not cleaned the interior for six months.\\nPolice investigators found Ms. Szabo's shoes lying near her body, which was found in bushes approximately one mile from where defendant's tow truck had been seen with Ms. Szabo in it and along the route the tow truck appeared to be following. Except for dirt on one of the victim's heels, which corresponded with a drag mark near the body, her white socks were clean and dry. Forty-five dollars were found in the victim's left sock, but no five dollar bills were present. The autopsy revealed that the victim's wounds were consistent with a strong, doubly-incised blade one inch in width. None of the wounds was deeper than seven inches. One of the wounds had a hilt mark on it consistent with the unique hilt of a \\\"Mark II\\\" survival knife seized from the defendant. The \\\"Mark II\\\" knife has a seven and one-half inch, doubly-incised blade. The man who sold the \\\"Mark II\\\" knife to defendant testified that his records showed he had sold two such knives to defendant. A second knife was not found.\\nI.\\nDefendant first assigns as error the trial court's admission of expert testimony on microscopic hair analysis and comparison. Ms. Carpenter, the state's expert, testified that hairs found in the decedent's hand, outer sweater, and turtleneck sweater were \\\"similar\\\" to or \\\"indistinguishable\\\" from hair samples taken from defendant. Defendant challenges this evidence on the grounds that (1) Ms. Carpenter was not qualified as an expert witness, and (2) microscopic hair comparison should not be admissible unless the scientific method used to make the comparison is generally accepted as reliable in the scientific community.\\nAt trial defendant did not challenge Ms. Carpenter's qualifications as an expert, so that issue is not properly before us. Accordingly, we consider only the second argument.\\nDefendant's contention that the questioned evidence should not have been admitted raises issues which have attracted the attention of courts, attorneys, and forensic professionals for many years in an effort to resolve the question of what standard should govern the admissibility of scientific evidence. See generally, Mossens and Inbau, Scientific Evidence in Criminal Cases, \\u00a7 1.03 (2d ed 1978). Two basic approaches have evolved. The first is that scientific evidence is not admissible unless the scientific technique in question has gained general acceptance in the relevant scientific community. The second approach is that scientific evidence is admissible once a showing of its reasonable reliability is made, without regard to whether the method has attained general acceptance. Oregon has not yet taken a definitive position on this issue.\\nThe case of Frye v. United States, 293 F 1013 (DC Cir 1923), formed the genesis of the rule which requires that, prior to the admission of expert testimony based on the application of a scientific technique, a foundation must be laid as to general acceptance of the technique within the relevant scientific community. Frye involved a defendant's attempt to introduce evidence of a systolic blood pressure test (a precursor to the modem polygraph test) which indicated his innocence. The court stated:\\n\\\"Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. \\\" (Emphasis supplied.) 293 F at 1014.\\nThe rationale of Frye has since been applied by an apparent majority of courts determining the admissibility of scientific evidence. See Reed v. State, 283 Md 374, 391 A2d 364, 97 ALR3d 201, 207-09 (1978); Annot., 97 ALR3d 294 (1980) (admissibility of voice print evidence); McCormick, Evidence \\u00a7 203, at 488-89 (2d ed 1972).\\nA minority of courts have rejected the Frye approach as unnecessarily restrictive to the admissibility of otherwise relevant scientific evidence. These courts have adopted, instead, a \\\"reliability\\\" test, under which scientific evidence is admissible if the trial court determines that a foundation as to its reasonable reliability has been made. E.g., United States v. Baller, 519 F2d 463, cert den 423 U.S. 1019, 96 S Ct 456, 46 L Ed2d 391 (4th Cir. 1975); State v. Hall, 297 NW2d 80, 86 (Iowa 1980); see Annot., 97 ALR3d, supra at 316-21. Thus, once a competent expert testifies that the scientific process in question is reliable, refutation evidence or evidence of disagreement in the scientific community regarding the reliability of the process bears on the weight, not the admissibility, of that evidence. Id.\\nThis question of the admissibility of scientific evidence was subjected recently to exhaustive analysis in Reed v. State, supra, a case involving identification by voice print analysis. A capsulization of the arguments presented in the majority and dissenting opinions in Reed is illustrative of the reasons advanced in most cases addressing this question.\\nThe majority in Reed advanced the following reasons in favor of its decision to adopt the Frye test:\\n(1) The criterion of \\\"general acceptance\\\" in the scientific community has become the standard in almost all of the courts in this country which have considered the question.\\n(2) Fairness to a litigant requires that before the results of a scientific process can be used against him, he be entitled to a scientific judgment on the reliability of that process.\\n(3) Lay jurors tend to give considerable weight to 'scientific' evidence when presented by experts, and new scientific tests often obtain an aura of certainty which obscures their experimental nature.\\n(4) The test protects both prosecution and defense by assuring that a minimal reserve of experts exists who can critically examine the validity of a scientific determination.\\n(5) Under the reliability test, evidence which some experts consider to be reliable would be admissible. Each factfinder would then be called upon to determine, in the course of its deliberation, the validity of the particular scientific process. Thus, on the same evidence, one trier of fact might determine that the technique is unreliable and ignore the results, while another might determine that it is reliable and convict or acquit on the basis of those results. This inconsistency concerning the validity of a scientific test would be intolerable, and is largely avoided under the Frye test.\\n(6) Under the reliability test, the introduction of evidence of a scientific test not generally accepted in the scientific community is likely to distract the jury's attention from the real issues in the case by elevating the question of the reliability of the process to the status of a central issue in the trial. The proceedings may well degenerate into a trial of the technique itself. The Frye approach is designed to forestall this eventuality.\\nThe dissent in Reed advanced the following key arguments in favor of the reliability test:\\n(1) The Frye rule was formulated in a case involving a lie-detector test, which evidence invades the jury's province of assessing the credibility of a witness. Other types of scientific evidence do not usurp this critical function, but rather aid the jury in determining the facts. Hence, it is inappropriate to extend the Frye rule beyond cases involving scientific assessments of a witness' credibility.\\n(2) McCormick's Handbook of the Law of Evidence, \\u00a7 203 at 491 (2d ed 1972), states:\\n\\\" 'General scientific acceptance' is a proper condition for taking judicial notice of scientific facts, but nqt a criterion for the admissibility of scientific evidence. Any relevant conclusions which are supported by a qualified expert witness should be received unless there are other reasons for exclusion.\\\"\\n(3) The standard of 'general acceptance' is a nebulous concept which requires something greater than acceptance by the expert himself but less than acceptance by all experts in the field. The test lacks definiteness and uniformity of application, and is not required in other areas of expert testimony.\\n(4) The Frye test unnecessarily limits admissibility of new methods of scientific investigation. Under the reliability test, scientific evidence could be submitted to the jury upon a showing of reasonable reliability. Based on its determination of the accuracy and reliability of the evidence, the jury would decide the weight to be accorded it. The jury performs the weighing function with regard to other types of evidence, and is competent to do so with regard to scientific evidence.\\n(5) The trend in federal courts is toward the admission of expert testimony, including scientific testimony, which will assist the trier of fact to understand the evidence or to determine the fact in issue. Reed v. State, supra 391 A2d at 377 (Smith, J., dissenting). See also State v. Hall, 297 NW2d 80 (Iowa 1980).\\nOregon courts have discussed the admissibility of one type of scientific evidence, the polygraph test, at some length. The results of a polygraph examination are not admissible in a civil or criminal proceeding unless both parties consent. State v. Green, 271 Or 153, 531 P2d 245, 91 ALR3d 1301 (1975); State v. Clifton, 271 Or 177, 531 P2d 256 (1975); State v. Skelton, 41 Or App 497, 500-01, 599 P2d 1171 (1979); Sandlin v. OWCC, 28 Or App 519, 522-23, 559 P2d 1308 (1977).\\nThe Oregon Supreme Court has observed:\\n\\\"[t]he principal reason for rejecting such evidence is that the polygraph has not yet attained general scientific acceptance as a reliable and accurate means of ascertaining truth or deception, as required as a prerequisite to judicial acceptance of new scientific techniques and devices. [Footnote omitted.]\\\"\\nState v. Green, supra, 271 Or at 165-66; accord, State v. Clifton, supra, 271 Or at 181. In Green and Clifton, the Supreme Court stated that the general acceptance test was the \\\"principal reason\\\" given by other courts in rejecting polygraph results, but it did not expressly adopt that test in Oregon. Neither has the court stated how the general acceptance test comes into play \\u2014 does the court take judicial notice of such acceptance, or does the proponent have the burden of establishing such acceptance?\\nIn some instances, a scientific technique's validity and reliability may have attained such broad acceptance in the relevant scientific community that a court may take judicial notice of that acceptance. That appears to be the case, for example, with regard to ballistics tests, fingerprint identification, and certain blood tests. However, where, as here, judicial notice may not be taken properly because relatively new scientific techniques are involved, the question, is what foundation, if any, must be laid to permit the expert testimony to be considered by the jury. We are satisfied that under these circumstances, and where the question is raised, some foundation is required as a prerequisite to the admission of the evidence. Both Green and Clifton assume that proposition.\\nThere is something to be said for both the Frye and the reliability tests. In all, however, we conclude that the reliability test is the more acceptable one. The Frye test purports to keep the trial uncluttered by having the judge make an initial determination that the scientific technique is generally accepted; if it is, the evidence is admitted. However, if an adjunct of that approach is that the opposing party (here the defendant) may not put on expert evidence, including evidence as to the scientific community's acceptance of the techniques involved, we believe it is unduly restrictive, particularly in a criminal case. On the other hand, if the opponent may adduce such evidence, a principal objective of the rule is defeated \\u2014the jury would be permitted to decide the general acceptability question.\\nFurthermore, it is not clear that under Frye what results flow from a judge's determination of general acceptance based upon the showing made in a given case. Does that determination govern all future cases? If so, a technique which is, in fact, not generally accepted may bind future litigants because the opponent of the technique in the original case failed to do his homework. If not, then a scientific technique may be treated judicially as generally accepted in one case, but not in another. That seems to be a highly unscientific way in which to treat scientific evidence.\\nGiven the foregoing flaws, we conclude that the only foundation required where the technique has not been accepted in this state is that there be credible evidence on which the trial judge may make the initial determination that the technique is reasonably reliable. If so, then the evidence may be admitted and the weight to be given it is for the jury, who may consider evidence as to its reliability.\\nThe issue here was raised in a pretrial hearing at which the opposing experts testified. The evidence does not support a finding that the scientific techniques employed by the state's expert (microanalysis of hair for identification purposes) are generally accepted in the scientific community. But see People v. Watkins, 78 Mich App 89, 259 NW2d 381 (1977) (adequate foundation for such technique was laid). The evidence is, however, sufficient to support a finding that such techniques are reasonably reliable.\\nWe hold, therefore, that it was not error to admit the evidence.\\nn.\\nDefendant's second assignment of error challenges testimony by Jim Juan, a friend of defendant, regarding inculpatory statements defendant made to him in a telephone conversation. Out of the presence of the jury, Mr. Juan stated that after defendant admitted to him that he had lied initially about not having had Ms. Szabo in his truck on the night of the murder, Juan asked defendant what other evidence the police were going to find against him. Juan stated that although he could not recall the exact words defendant used in response, defendant said either, \\\"there isn't any more,\\\" or \\\"I don't think so,\\\" or that he had \\\"gotten rid of it and there wasn't any more.\\\" Defendant objected to this testimony on the ground that Juan was unable to remember the conversation with sufficient accuracy to give a trustworthy account of it. The court ruled that the witness could testify.\\nJuan testified at trial as follows:\\n\\\"Q And with further reference to that conversation, can you tell the jury what he told you with respect to any evidence that the police were looking for?\\n\\\"A Oh, yeah. It was just \\u2014 he paused \\u2014 I got a little uptight when he told me that she had been in the truck, so I countered with, well, just what else are they going to come up with? And he said, nothing \\u2014 or he didn't think they'd come up with anything else, or it was all gone\\u2014 gotten rid of, or something along those lines.\\n\\\"He said there was no more evidence to come about; there wasn't any to be had.\\\"\\nOral admissions of a party defendant are admissible against him as an exception to the hearsay rule. However, such admissions are to be viewed with caution by the trier of fact, and the jury should be so instructed in an appropriate case. ORS 17.250(4); State v. Bouse, 199 Or 676, 698, 274 P2d 800 (1953). The court in Bouse stated:\\n\\\"The reason for this rule [requiring a cautionary instruction] is obvious. A party making an alleged oral admission may have been misinformed or may not have clearly expressed his meaning, or the witness testifying thereto may have misunderstood him; or it may be that the witness who testifies to the admission, by intentionally or unintentionally altering a few of the expressions really used, gives an effect to the statement completely at variance with what the party actually did say. On the other hand, if the jury believes from the evidence that the alleged admissions were clearly and understandingly made by the party, that they have been precisely identified and that the language used is correctly remembered and accurately reported by the witness, it is entitled to consider them for what it may deem them to be worth against the party making them.\\\" 199 Or at 698-99.\\nAlthough Juan did not remember the precise language used by defendant, he remembered the gist of it, and the jury was properly instructed to view defendant's admission with caution. It was for the jury to give Juan's imprecise recollection the weight it deemed appropriate. There was no error.\\nm.\\nDefendant's third assignment of error relates to the admission into evidence of an ordinary photograph of the victim's face, taken some time prior to her death. Defendant objected on grounds of relevance, and argues here that the sole purpose for introducing the picture was to create sympathy for the victim among the jurors.\\nPart of the state's case was that Ms. Szabo was a beautiful woman who had a higher-class clientele than the run of the mill prostitute and charged higher rates ($50 to $200). Further, the state introduced evidence that Ms. Szabo worked primarily out of motels and would not have accepted what is termed a \\\"car date.\\\" This characterization of Ms. Szabo tended to contradict defendant's statement that for $20 she willingly agreed to have sex in his tow truck. Furthermore, the state attempted to prove that Ms. Szabo's physical beauty and unavailability to the defendant were central to his motive to kill her. The photograph was not inflammatory and tended to prove the state's theory of the case; therefore, it was properly admitted as relevant. ORS 41.230.\\nIV.\\nDefendant next contends that the court erred in prohibiting him from impeaching the credibility of the witness who saw Ms. Szabo in the tow truck by inquiring of him whether he ever supplied Ms. Szabo with drugs. As already mentioned, this witness testified that he and Ms. Szabo were friendly and that she would discuss her personal problems with him. He further testified that he saw Ms. Szabo riding in a tow truck shortly before she was murdered.\\nThe proffered evidence was correctly excluded for impeachment purposes for two reasons. First, a witness' credibility may not be impeached by evidence of particular wrongful acts unless the witness has been convicted. ORS 45.600; State v. Townsend, 237 Or 527, 392 P2d 459 (1964). Second, the nature of the relationship between Ms. Szabo and this witness was collateral to the witness' ability, in fact, to make a positive identification of Ms. Szabo as the woman in the tow truck. State v. Gardner, 16 Or App 464, 518 P2d 1341 rev den (1974).\\nV.\\nDefendant's final assignment challenges the trial court's denial of his motion to suppress testimony regarding the blood samples taken from his tow truck, and the denial of his motion to dismiss based on the destruction of those samples. Defendant argues that the state's failure to preserve a portion of the blood for independent testing, and its failure to photograph the results of enzyme tests performed on that blood for independent analysis, deprived him of due process under Brady v. Maryland, 373 US 83, 83 S Ct 1194, 10 L Ed 2d 215 (1963).\\nThe state is under an affirmative duty to disclose to a defendant any evidence that is favorable to him and material to his guilt or innocence. Brady v. Maryland, supra; State v. Koennecke, 274 Or 169, 545 P2d 127 (1976). The duty to disclose includes a duty to preserve evidence prior to trial. See State v. Michener, 25 Or App 523, 532, 550 P2d 449 (1976); State v. Hockings, 23 Or App 274, 285, 542 P2d 133, rev den (1976). In order to show a violation of the constitutional right set forth in Brady, a defendant must demonstrate, to the extent possible under the circumstances, that the evidence is both favorable and material to an element of his defense. State v. Koennecke, supra; State v. Mower, 50 Or App 63, 622 P2d 745 rev den (1981). The scope of the required showing of favorableness is gauged against what it would be possible to show under the circumstances. State v. Mower, supra.\\nThus, where evidence sought to be disclosed has been functionally destroyed, but was subjected to scientific testing by the state prior to its destruction, a defendant must show that a retest would have been possible and must challenge the state's test results, either by attacking the manner in which the test was conducted or by other evidence. State v. Mower, supra; State v. Lance, 48 Or App 141, 616 P2d 546 (1980); State v. Michener, 25 Or App 523, 550 P2d 449 (1976). On the other hand, if the state has not tested an item of evidence before its loss or destruction, and no other facts indicate that test results might have proved unfavorable to the defendant, little more is required than a showing that the test could have been performed and results obtained which, in the context of the defendant's version of the facts, would prove exculpatory. State v. Mower, supra. If a due process violation is established, the trial court must take whatever action is reasonably necessary to prevent prejudice to the defendant. E.g., State v. Mower, supra.\\nAlthough luminol testing here indicated that a large area of the passenger seat and seat-back of defendant's tow truck had been covered with blood, only a minute amount of blood was actually recovered from the seat. The state's expert removed small flecks of blood from the webbing of the seat fabric in an area about one and one-half inches in diameter, and blotted up additional blood from that area on two or three moistened swabs. Several small spots of blood were also obtained from a rope found in the truck. The state's experts testified that virtually all of the available blood was consumed in the process of typing it and identifying its enzyme content.\\nDefendant presented evidence to suggest that the blood in the truck was either from his wife's previous menstrual cycle or from the nosebleed of a small boy who had been in the truck approximately four months before. However, any suggestion that the blood was from defendant's wife was disproved by expert testimony (with which defendant's expert agreed), and by evidence that a large amount of blood had been on both the seat and seat- back, and that blood was present on the weatherstripping of the passenger window. The nosebleed suggestion was substantially eliminated as a viable theory by evidence that the blood on the seat and rope was relatively fresh, because enzyme typing was successfully completed and such tests cannot be accomplished after blood is four to six weeks old. Furthermore, the blood on the seat was consistent with the victim's blood, and only 5.6 percent of the population has that particular blood type and enzyme combination. Because the small boy who allegedly bled from the nose was not identified, no blood comparisons could have been made to aid defendant.\\nThere is no question that blood identification evidence is material to this case, and that if more blood had been available it could have been independently tested by a defense expert. However, defendant has neither challenged the methods or results of the state's tests nor contended that the results of retesting would be favorable to him. The same problem exists in connection with defendant's contention that the state's failure to photograph the results of its blood enzyme tests deprive him of due process. See State v. Ketchersid, 37 Or App 97, 586 P2d 119 (1978), rev den (1979). Hence, defendant has failed to demonstrate a due process violation. State v. Koennecke, supra, 274 Or at 180, State v. Mower, supra. Defendant's motions to suppress and dismiss were properly denied.\\nAffirmed.\\nA number of courts rely, in essence, on the Frye rationale, but require only that a scientific test be generally accepted by the members of the specialised field who deal with the subject of the scientific test. E.g., Commonwealth v. Lykus, 367 Mass 191, 327 NE2d 671 (1975); People v. Williams, 164 Cal App 2d Supp 858, 331 P2d 251 (1958) (general acceptance of test by individuals who would be expected to be familiar with its use is all that is required in this age of specialization).\\nRule 702 of the Federal Rules of Evidence adopts a liberal approach to the admission of expert testimony:\\n\\\"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.\\\"\\nIn State v. Harris, 241 Or 224, 405 P2d 492 (1965), admissibility of evidence of hair comparison was not challenged on grounds of reliability or lack of foundation as to general scientific acceptance of hair microanalysis. The only objection was that the hair identification was not conclusive, and the court held that objection went only to the weight but was not a basis for exclusion.\\nDefendant does not argue that the state should be prohibited from employing reasonable testing techniques that destroy the evidence being tested. However, citing People v. Gomez, 596 P2d 1192 (Colo 1979); and State v. Wright, 87 Wash 2d 783, 557 P2d 1 (1976), he urges this court to adopt guidelines controlling the procedures used by government agents in dealing with evidence of a crime, which procedures would ensure the preservation of virtually all potential material, favorable evidence. We have previously recognized that\\n\\u00ab. [t]he difficulty inherent in requiring the defendant to make some showing of favorableness is even more acute where the evidence has been destroyed. The crux of the problem is that only the prosecution, the defendant's adversary, has any information regarding the destroyed evidence. \\\" State v. Hockings, 23 Or App 274, 285-87, 542 P2d 133 rev den (1976).\\nHowever, in view of the flexible approach adopted by this court, in which the necessary showing of favorableness is measured against the showing which it is possible to make under the particular circumstances, we do not find it necessary at this time to adopt the Gomez and Wright approach in order to assure defendant's due process rights. We note, however, that questions concerning the deprivation of those rights would be substantially obviated if the state adopted a procedure to notify the defendant that tests are about to be conducted and giving defendant an opportunity to arrange for his expert to be in attendance.\\nDefendant's reliance on ORS 135.815, the discovery statute, is also misplaced. State v. Hockings, 23 Or App 274, 284-85, 542 P2d 133, rev den (1976).\"}"

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+"{\"id\": \"2075196\", \"name\": \"STATE OF OREGON, Respondent, v. STEPHEN THOMAS EISMANN, Appellant\", \"name_abbreviation\": \"State v. Eismann\", \"decision_date\": \"1975-04-14\", \"docket_number\": \"No. C 74-03-0670 Cr\", \"first_page\": \"92\", \"last_page\": \"97\", \"citations\": \"21 Or. App. 92\", \"volume\": \"21\", \"reporter\": \"Oregon Reports, Court of Appeals\", \"court\": \"Oregon Court of Appeals\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T17:20:50.886312+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Schwab, Chief Judge, and Fort and Lee, Judges.\", \"parties\": \"STATE OF OREGON, Respondent, v. STEPHEN THOMAS EISMANN, Appellant.\", \"head_matter\": \"Argued March 18,\\naffirmed April 14, 1975\\nSTATE OF OREGON, Respondent, v. STEPHEN THOMAS EISMANN, Appellant.\\n(No. C 74-03-0670 Cr)\\n533 P2d 1379\\nTony Pissuti, Portland, argued the cause and filed the brief for appellant.\\nRhidian M. M. Morgan, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Le\\u00e9 Johnson, Attorney General, and W. Michael Gillette, Solicitor General, Salem.\\nBefore Schwab, Chief Judge, and Fort and Lee, Judges.\", \"word_count\": \"1399\", \"char_count\": \"8134\", \"text\": \"LEE, J.\\nDefendant appeals from conviction for criminal activity in drugs contending that the denial of his motion to suppress evidence seized from his person during police \\\"pat down\\\" was error. We affirm.\\nOn February 11, 1974, a Portland police officer (Scarino) signed an affidavit in support of a warrant to search an envelope addressed to the defendant. The affidavit asserted that the affiant had been contacted by a postal inspector (Taylor) who told the affiant that a customs official at the Customs Airmail Facility at the Port of Los Angeles (Castro) had examined the contents of the envelope in question and found that it contained cocaine. The affiant further stated that postal inspector Taylor told him that customs official Castro gave the envelope to Taylor and that the envelope would be delivered to the defendant the next day during the regular mail delivery. The warrant was granted the same day and pursuant thereto the contents of the envelope were examined in a laboratory prior to delivery and found to contain cocaine.\\nThe next day, police officer Scarino signed a second affidavit requesting a warrant to search the premises at \\\"1328 SE Ivon\\\" and \\\"Mr. S. T. EISMANN c/o Eric SIMMS\\\" for \\\"Cocaine, and Narcotics and Narcotics Paraphernalia\\\" and a \\\"letter addressed to Mr. S. T. EISMANN c/o Eric SIMMS 1328 SE Ixon [sic] Portland, Oregon, envelope 4//x9%\\\" and has no return address.\\\"\\nThe following day (February 13) Portland police officers Johnson and Bisenius and postal inspector Bogue went to the address involved and Bogue put the letter in the mailbox. The three men kept the premises under surveillance for two hours until a car with two people visible in it approached the premises and the passenger (the defendant) got out of the car and went to the mailbox and took out two or three letters from the mailbox and looked at them. The officers and postal inspector were of the belief that the person (whom they did not then know was the defendant) took one of the envelopes with him. As the car started to pull away, the officers (along with the postal inspector) pulled up in front of the car and officer Johnson identified himself to the defendant, opened the car door, and, in the course of patting down the defendant for weapons, felt a hard object. After being pushed away from the area of the hard object by the defendant, Johnson retrieved a pouch, open at the top. Inside the pouch was a small amber vial with white powder, a small straw, a matchbox and some brown substance wrapped inside a green plastic container. The white powder turned out to be cocaine and the brown substance, opium.\\nDefendant claims that all of the evidence seized was the result of an illegal search and seizure. In developing this claim, the defendant makes several contentions, among them that the affidavit supporting the search warrant for the envelope did not state probable cause. In support of this, the defendant, while acknowledging that hearsay information may be used in an affidavit for a search warrant, claims that the affidavit in the instant case runs afoul of OES 133.545(3) which states in part that\\n<i If an affidavit is based in whole or in part on hearsay, the affiant shall set forth facts bearing on any unnamed informant's reliability and shall disclose, as far as possible, the means by which the information was obtained.\\\"\\nThe defendant contends \\\" the reliability of the individual from whom the affiant receives his information shall be established in the affidavit.\\\" We have held before that the reliability of a hearsay informant is sufficiently established where the informant is a named police officer. State v. Skinner, 5 Or App 259, 263, 483 P2d 87, Sup Ct review denied (1971), cert denied 406 US 973, 92 S Ct 2419, 32 L Ed 2d 673 (1972); State v. Miller, 2 Or App 87, 95, 465 P2d 894, Sup Ct review denied (1970), cert denied 406 US 974, 92 S Ct 2418, 32 L Ed 2d 674 (1972).\\nIn addition, the defendant notes certain discrepancies between the letter described in the affidavit and the letter seized. The affidavit mistakenly describes the letter at two points as a \\\"newspaper\\\" and describes the letter as having no return address (the letter had the preprinted name and address of a motel and appears to be a part of the stationery of the motel). The minor discrepancies emphasized by the defendant are not fatal to the affidavit.\\nDefendant's second contention is that the police did not have grounds to frisk him. We find that the search of the defendant was justified for either of two reasons. First, the search was made pursuant to a valid warrant to search the defendant. While the police did not know at the time of the search that the person they were searching was the defendant, they were in fact searching the defendant. Defendant has not cited any authority for requiring that in a situation of this type the searching officers must first know that the person they are searching is in fact the person they hold a warrant to search. Second, the officers had probable cause to make the search without a warrant. The officers testified that it appeared to them that the letter in question was taken from the mailbox by the defendant. In fact, it was not, but they thought so at the time they searched the defendant. Since they knew the envelope contained cocaine, probable cause was present. The potential for loss of evidence was obvious where the car defendant was riding in was in the process of pulling away. In such circumstances, a warrantless search is permissible. State v. Kloucek, 17 Or App 74, 520 P2d 458, Sup Ct review denied (1974); State v. Krohn, 15 Or App 63, 65 and 66, 514 P2d 1359 (1973), Sup Ct review denied (1974); State v. Murphy, 3 Or App 82, 84, 471 P2d 863 (1970).\\nDefendant's third contention is that even if officer J ohnson had the right to take possession of the ponch, the search of the contents was unlawful in its detail and intensity. Officer Johnson's examination of the pouch was justifiable as a search for the envelope (it was after officer Johnson discovered the contraband in the pouch that he learned, from Inspector Bogue, that the envelope in question was still in the mailbox) or as an examination for a weapon pursuant to ORS 131.625(2). It was during the course of this examination that the officer discovered the containers of powder and the small straw which, coupled with his experience as a narcotics officer that such a straw is often used to sniff cocaine, supplied the probable cause requisite to seizure. An analogous case is State v. Williams, 17 Or App 513, 522 P2d 1213 (1974), wherein the defendant was arrested on a prostitution charge. In searching the defendant's purse for weapons, the officer who said it was common in his experience for prostitutes to carry razor blades found heroin inside a folded dollar bill which was inside a zippered compartment of the purse. The officer said he also knew from experience that it was common for prostitutes to carry illegal drugs and that he had seen illegal drugs in powder form carried in folded paper money. The officer squeezed the dollar bill and sensed that it contained powder. We held that he had probable cause to believe the dollar bill contained an illegal drug.\\nIn both Williams and the case at bar, the officers were making a legitimate search in the course of which they observed items which justified further, or more detailed, search.\\nAffirmed.\\n\\\"If, in the course of the frisk, the peace officer feels an object which he reasonably suspects is a dangerous or deadly weapon, he may take such action as is reasonably necessary to take possession of the weapon.\\\" ORS 131.625(2).\"}"

or/2084577.json

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+"{\"id\": \"2084577\", \"name\": \"STATE OF OREGON, Respondent, v. ARTHUR POWELL HAYNES, Appellant\", \"name_abbreviation\": \"State v. Haynes\", \"decision_date\": \"1981-09-08\", \"docket_number\": \"No. 27540, CA 19262\", \"first_page\": \"850\", \"last_page\": \"855\", \"citations\": \"53 Or. App. 850\", \"volume\": \"53\", \"reporter\": \"Oregon Reports, Court of Appeals\", \"court\": \"Oregon Court of Appeals\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-11T00:05:38.496214+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Gillette, Presiding Judge, and Roberts and Young, Judges.\", \"parties\": \"STATE OF OREGON, Respondent, v. ARTHUR POWELL HAYNES, Appellant.\", \"head_matter\": \"Argued and submitted May 13,\\nremanded for resentencing September 8,\\nrespondent\\u2019s and appellant\\u2019s reconsiderations denied October 15, petitions for review denied November 17, 1981 (292 Or 108)\\nSTATE OF OREGON, Respondent, v. ARTHUR POWELL HAYNES, Appellant.\\n(No. 27540, CA 19262)\\n633 P2d 38\\nJ. Marvin Kuhn, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.\\nJames M. Mountain, Assistant Attorney General, Salem, argued the cause for respondent. On the brief were Dave Frohnmayer, Attorney General, John R. McCulloch, Jr., Solicitor General, William F. Gary, Deputy Solicitor General, and David L. Hennings, Certified Law Student, Salem.\\nBefore Gillette, Presiding Judge, and Roberts and Young, Judges.\\nROBERTS, J.\", \"word_count\": \"1380\", \"char_count\": \"8218\", \"text\": \"ROBERTS, J.\\nDefendant appeals from his conviction for kidnapping in the second degree. He assigns as errors the denial of his motion for judgment of acquittal, the imposition of costs and the requirement that he pay a probationary fee during the course of his probation. We consider only the issues of costs and the probationary fee.\\nIn March, 1980, defendant took the victim, a ten-year old girl who is his second cousin, from her school ground and transported her to California. The girl remained with defendant for approximately one month before he was arrested and she was returned to her family in Oregon. The police were fairly certain that the girl was with defendant; thus the investigation of the crime consisted primarily of searching for defendant and the girl.\\nDefendant specifically challenges the following portions of the corut's judgment order:\\n\\\"8. That defendant shall repay Polk County, Oregon, through the Clerk of the Court for out of pocket expenses incurred by Polk County in connection with the investigation, trial, and return, of defendant's victim in the amount of $5,678.75, said payments to be made in installments of not less than $120.00 per month, said payments to begin within sixty days of the defendant's release from the Polk County Jail and to be paid to the Clerk of the Court on the 1st day of each and every month.\\n\\\"9. That the defendant shall pay a $10.00 per month probationary fee, the first of said payments to be made to the Clerk of the Court on the 1st day of the month after his release from the Polk County jail and a like sum on the first day of each and every month thereafter until the defendant's probation shall be terminated.\\\"\\nThe amount set in condition number 8 is the total of 20 different items. Defendant contends that he should be required to pay for only two items, the cost of certain motel bills for witnesses at the trial and the county's out-of-pocket cost of returning the girl to Oregon. He argues that all of the other costs were expended for investigation, and he is therefore not required to pay them. The other costs are:\\n1. Motel bills for the officers in California on the investigation. $528.54\\n2. Meals for investigating officers. $86.60\\n3. Gasoline for police vehicles. $183.98\\n4. Airplane rental and fuel for plane used in search. $1,153.58\\n5. Fuel for deputies' private planes used in search. $117.30\\n6. Air map and flight organizer for planes used in search. $14.04\\n7. Cost of psychiatric examination of Vickie Smith. $150.00\\n8. Cost of physical examination of Vickie Smith. $64.00\\n9. Posters prepared and distributed over West Coast. $98.00\\n10. Per diem for officers while in California. $672.00\\n11. Tapes for recording defendant's statement. $29.88\\n12. Debriefing of officers for follow-up investigation. $71.02\\n13. Photos of Vickie and defendant's truck. $258.20\\n14. Clerical help for transcribing witness interviews. $162\\n15. Long distance calls to and from Sheriff's Office. $550\\n16. Telephone taps on defendant's relatives in Mill City and costs of officers who stayed there. $147.31\\n17. Cost of returning defendant's vehicle to Oregon. $561.90\\n18. City of Dallas. Reasons for costs unknown. $154.41\\nORS 161.665 provides in pertinent part:\\n\\\"(1) The court may require a convicted defendant to pay costs.\\n\\\"(2) Costs shall be limited to expenses specially incurred by the state in prosecuting the defendant. They cannot include expenses inherent in providing a constitutionally guaranteed jury trial or expenditures in connection with the maintenance and operation of government agencies that must be made by the public irrespective of specific violations of law.\\\"\\nWe have specifically stated in State v. Fuller, 12 Or App 152, 157, 504 P2d 1393, rev den (1973), aff'd sub nom Fuller v. Oregon, 417 US 40, 94 S Ct 2116, 40 L Ed 2d 642 (1974), that costs of police investigations are not part of costs of prosecution. We interpret the language \\\"[c]osts shall be limited to expenses specially incurred by the state in prosecuting the defendant\\\" (emphasis added) to be those costs incurred by the state after the defendant has been charged with a crime. The prosecution does not begin until there is a named defendant who has been charged. In this case, even though the officers were fairly certain of whom they were looking for, defendant had not been charged at the time some of these costs were incurred. It is true the officers knew a crime had been committed, and defendant was the suspect; thus, the search for defendant and the girl was a part of the investigation. However, none of the expenses incurred prior to the actual charging of defendant are costs that defendant can be required to pay.\\nThe state's brief indicates that items 1, 2, 3,10,12, 15 and 17 were costs incurred after defendant had been taken into custody. Some of the other items, the state argues, were incurred in the prosecution of defendant, because they were costs related to the trial. Those are items 7, 8, 11, 13 and 14. It appears from this record that those were in fact expenditures for trial. The remaining items 4, 5, 6, 9 and 16 appear to be for police investigation. Because some items were erroneously included, we remand for re-sentencing. At that time it will be the responsibility of the state to demonstrate what costs were incurred after defendant was charged so that the trial court can segregate the cost items that may properly be included. We note that item 18 has no explanation, and we find nothing in the transcript to identify it; that item must either be deleted or be shown to be related to the prosecution if it is to be included as costs.\\nAs to the requirement that defendant pay a $10 per month probation fee, we find it was not within the authority of the court to impose such a condition. ORS 137.540(1) provides:\\n\\\"The court shall determine, and may at any time modify, the conditions of probation, which may include, as well as any others, that the probationer shall:\\n\\\"(a) Avoid injurious or vicious habits.\\n\\\"(b) Avoid places or persons of disreputable or harmful character.\\n\\\"(c) Report to the probation officer as directed by the court or probation officer.\\n\\\"(d) Permit the probation officer to visit him at his place of abode or elsewhere.\\n\\\"(e) Answer all reasonable inquiries of the probation officer.\\n\\\"(f) Work faithfully at suitable employment.\\n\\\"(g) Remain within a specified area.\\n\\\"(h) Pay his fine, if any, in one or several sums.\\n\\\"(i) Be confined to the county jail for a period not to exceed one year or one-half of the maximum period of confinement that could be imposed for the offense for which the defendant is convicted, whichever is the lesser.\\n\\\"(j) Make restitution to the victim as provided in ORS 137.106.\\n\\\"(k) Support his dependents.\\\"\\nAlthough the statute allows the court to set conditions of probation other than those listed, we conclude that any additional conditions should be of the same kind as those specifically enumerated in the statute. State v. Tucker, 28 Or App 29, 32, 558 P2d 1244 (1977). The court may require the payment of money for fines and for restitution, both of which are expressly provided for in the statute, but the requirement that defendant pay a monthly probation fee is not a valid probation condition of the same kind as those specifically enumerated.\\nRemanded for resentencing.\\nDefendant's assignment of error on the denial of his motion for judgment of acquittal is without merit.\"}"

or/2086526.json

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+"{\"id\": \"2086526\", \"name\": \"CHARLES EDWARD NORTON, Appellant, v. CUPP, Respondent\", \"name_abbreviation\": \"Norton v. Cupp\", \"decision_date\": \"1981-11-23\", \"docket_number\": \"No. 115,631, CA A20649\", \"first_page\": \"897\", \"last_page\": \"898\", \"citations\": \"54 Or. App. 897\", \"volume\": \"54\", \"reporter\": \"Oregon Reports, Court of Appeals\", \"court\": \"Oregon Court of Appeals\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-11T01:57:45.119909+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Richardson, Presiding Judge, and Thornton and Van Hoomissen, Judges.\", \"parties\": \"CHARLES EDWARD NORTON, Appellant, v. CUPP, Respondent.\", \"head_matter\": \"Argued and submitted July 27,\\nreversed and remanded for an order allowing a delayed appeal November 23, 1981\\nCHARLES EDWARD NORTON, Appellant, v. CUPP, Respondent.\\n(No. 115,631, CA A20649)\\n636 P2d 468\\nTimothy G. Garlock, Certified Law Student, Salem, argued the cause for appellant. On the brief was Eric W. Olsen, Salem.\\nVirginia L. Linder, Assistant Attorney General, Salem, argued the cause for respondent. With her on the brief were Dave Frohnmayer, Attorney General, and William F. Gary, Solicitor General, Salem.\\nBefore Richardson, Presiding Judge, and Thornton and Van Hoomissen, Judges.\\nPER CURIAM.\", \"word_count\": \"187\", \"char_count\": \"1149\", \"text\": \"PER CURIAM.\\nPetitioner appeals dismissal of his petition for post-conviction relief. The court found he had been denied effective assistance of appellate counsel because his appointed counsel had failed to file a timely notice of appeal. The court dismissed the petition on the basis that he had not shown a meritorious ground for an appeal. For the reasons expressed in Daniel v. Cupp, 54 Or App 824, 636 P2d 452 (1981), we reverse and remand for entry of an order allowing petitioner to file a notice of appeal within 30 days of the order.\"}"

or/2103608.json

@@ -0,0 +1 @@
+"{\"id\": \"2103608\", \"name\": \"STATE OF OREGON, Respondent, v. STEVEN EUGENE GRASS, Appellant\", \"name_abbreviation\": \"State v. Grass\", \"decision_date\": \"1979-08-20\", \"docket_number\": \"No. C 78-07-11751, CA 12712\", \"first_page\": \"575\", \"last_page\": \"582\", \"citations\": \"41 Or. App. 575\", \"volume\": \"41\", \"reporter\": \"Oregon Reports, Court of Appeals\", \"court\": \"Oregon Court of Appeals\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T20:08:06.231411+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Schwab, Chief Judge, and Tanzer, Richardson and Roberts, Judges.\", \"parties\": \"STATE OF OREGON, Respondent, v. STEVEN EUGENE GRASS, Appellant.\", \"head_matter\": \"Argued May 24,\\nreversed and remanded for resentencing August 20\\nSTATE OF OREGON, Respondent, v. STEVEN EUGENE GRASS, Appellant.\\n(No. C 78-07-11751, CA 12712)\\n599 P2d 1203\\nJames E. Mountain, Jr., Deputy Public Defender, Salem, argued for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.\\nCatherine Allan, Assistant Attorney General, Salem, argued the cause for respondent. With her on the brief were James A. Redden, Attorney General, and Walter L. Barrie, Solicitor General, Salem.\\nBefore Schwab, Chief Judge, and Tanzer, Richardson and Roberts, Judges.\\nROBERTS, J.\", \"word_count\": \"1965\", \"char_count\": \"11748\", \"text\": \"ROBERTS, J.\\nDefendant was convicted by a jury of assault in the second degree. He was sentenced to five years imprisonment, execution of which was suspended. Defendant was placed on probation upon the condition he be incarcerated in the Multnomah County Jail for a period of one year. Defendant first assigns as error the trial court's denial of his motion for judgment of acquittal on the ground of insufficient evidence. As to that assignment of error we affirm, State v. Krummacher, 269 Or 125, 523 P2d 1009 (1974).\\nDefendant also assigns as error the court's failure to sufficiently state reasons for the sentence imposed. Defendant relies upon ORS 137.120(2) which requires that \\\" [t]he court shall state on the record the reasons for the sentence imposed.\\\" At the sentencing hearing the court stated \\\"I have to give a reason for it. I am punishing you. That is the reason.\\\" We agree this was not adequate to meet the statutory requirement and we reverse and remand for resentencing.\\nA thorough analysis of the revision of the statutory scheme by the 1977 Legislative Assembly, Oregon Laws 1977, ch 372, \\u00a7 1-18, relating to sentencing and appellate review of sentences is provided in State v. Dinkel, 34 Or App 375, 385, 579 P2d 245 (1978). There we said\\n\\\"It is generally recognized that the sentencing decision ordinarily seeks to accomplish one or more of the objectives of the criminal law: (1) rehabilitation of the defendant; (2) isolation of the defendant from society; (3) deterrence of other members of the community from committing similar future crimes; and (4) retribution by the community against the defendant for his acts. See, e.g., W. LaFave & A. Scott, Criminal Law \\u00a7 5, at 22-24 (1972); Hall, General Principles of Criminal Law 308 (2d ed I960). To make a reasoned sentencing decision, a trial judge must determine the priority and relationship of appropriate objectives in each particular case. The duration of a sentence should therefore depend on which of these objectives is to be accorded primary weight in a particular case and on the relative weight to be assigned to the secondary objectives. See W. LaFave & A. Scott, supra, \\u00a7 5 at 25; Hart, The Aims of the Criminal Law, 23 Law & Contemp Prob 401 (1958); Yankwich, Individualization of Punishment in the Federal Courts, 20 FRD 385, 391-92 (1958).\\nThe sentencing court here selected the fourth objective listed above as its \\\"reason\\\" for the particular sentence imposed. We believe that the reasons required to be stated by the court are different from the general objectives to be desired from the application of our criminal laws.\\nAs we said in State v. Dinkel, supra, 34 Or App at 385:\\n\\\"[T]his court must now consider both the nature and the background of the offender and the facts and circumstances of the offense \\u2014 in effect, substantive appellate review of a sentence.\\\"\\nThe statutory requirement of review of sentences thus presumes an adequate basis for review.\\nWe cannot determine from the court's statement here why, as to this particular defendant, the court selected this particular sentence from among the wide range it may have imposed because the court has not communicated to us how it evaluated the nature and background of this defendant and the facts and circumstances of this offense. See State v. Biles, 287 Or 63, 597 P2d 808 (1979).\\nThe trial courts should not perceive appellate review as a legislative affront to their competence or integrity. We have interpreted the statute to give very broad discretion to the trial court and have said that where reasons are stated we will intervene only where a sentence imposed by the trial court is \\\" 'clearly mistaken,' Bordewick v. State, 569 P2d 184, 187 (Alas 1977), or a 'clear abuse of discretion.' State v. Waldrip, 111 Ariz 516, 518, 533 P2d 1151 (1975).\\\" State v. Dinkel, supra, 34 Or App at 387-88. However, reasons must be stated by the court in a manner that allows appellate review for mistake or abuse of discretion.\\nReversed and remanded for resentencing.\\nThe Supreme Court has also recently analyzed the statutory provisions in State v. Cloutier, 286 Or 579, 596 P2d 1278 (1979). There it said\\n\\\" Sentence review was expanded in 1977 from the former 'excessive, cruel or unusual' standard to the present substantive review by reference to 'the nature and background of the offender' and 'the facts and circumstances of the offense.' The absence of provisions for effective appellate review of sentences was one criticism leveled against earlier efforts to systematize sentencing law in the Model Sentencing Act published in 1963 by the National Council on Crime and Delinquency and the 1962 draft of the American Law Institute's Model Penal Code. Compare the American Bar Association's Report on Standards Relating to Appellate Review of Sentences \\u00a73.1, 3.2; and see generally, Caraway, Sentencing Reform in Multiple Offense Cases: Judicial and Legislative Avenues to Reform, 7 Conn L Rev 257 (1975). Taken together, the legislature's recent enactments reflect a continuing policy to bring rationality and proportionality to the penal dimension of criminal law, a dimension often marked by haphazard statutory penalties, by a deliberate or fortuitous multiplicity of charges, and by the tactical opportunities these factors offer in plea negotiations. [Footnote omitted]\\nThe propriety of objective (4) is questionable in Oregon. See Or Const, Art I, \\u00a7 15; see also Brown v. Multnomah County Dist. Ct., 280 Or 95, 105, 570 P2d 52 (1977).\\\"\\n\\u00ab\\n\\\"The ABA Report comments with respect to the standard of 'excessiveness':\\n\\\"[T]he provision is designed to reach not only the sentence that is clearly excessive on its face, but also the sentence that has no rational basis, the sentence that is dictated by emotion, the sentence that is wrong in principle, and sentences suffering from similar defects. It is intended that among other things the reviewing court should measure the imposed sentence against other dispositions that were open to the sentencing court. A consideration of whether a sentence is excessive thus involves not only consideration of a change in the length of the sentence, but also changes in its form. A commitment to jail when probation should have been imposed can of course be just as excessive as the imposition of ten years where five was called for.\\n\\\" 286 Or at 592-594.\\nBecause we remand on other reasons we do not consider the constitutional question suggested in n 2 of State v. Dinkel, 34 Or App 375, 385, 579 P2d 245 (1978).\\nWe note the court's interest in the fact that the person who had done the actual stabbing had plea bargained to an assault in the fourth degree, while defendant's conviction was for assault in the second degree, but no statement was made by the court that this was considered by him in the sentencing.\"}"

or/2111383.json

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+"{\"id\": \"2111383\", \"name\": \"ELLIOTT, Appellant, v. ROGERS CONSTRUCTION, INC. et al, Respondents\", \"name_abbreviation\": \"Elliott v. Rogers Construction Inc.\", \"decision_date\": \"1971-01-27\", \"docket_number\": \"\", \"first_page\": \"421\", \"last_page\": \"435\", \"citations\": \"257 Or. 421\", \"volume\": \"257\", \"reporter\": \"Oregon Reports\", \"court\": \"Oregon Supreme Court\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-11T01:11:57.018175+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before O\\u2019Connell, Chief Justice, and Benecke, Holman, Tongue, Howell and Bryson, Justices.\", \"parties\": \"ELLIOTT, Appellant, v. ROGERS CONSTRUCTION, INC. et al, Respondents.\", \"head_matter\": \"Argued October 26, 1970,\\nreversed and remanded as to Kenney, affirmed for Rogers, January 27, 1971\\nELLIOTT, Appellant, v. ROGERS CONSTRUCTION, INC. et al, Respondents.\\n479 P2d 753\\nRobert J. Morgan, Milwaukie, argued the cause for appellant. With him on the brief were Erlandson & Morgan, and Roger P. Mundorff, Milwaukie.\\nCleveland C. Cory, Portland, argued the cause for respondent Rogers Construction, Inc. With him on the brief were Davies, Biggs, Strayer, Stoel & Boley, and Clarence R. Wicks, Portland.\\nJames H. Clarke, Portland, argued the cause for respondent Fredrick Larry Kenney. With him on the brief were McColloch, Dezendorf, Spears & Lubersky, and Richard S. Borst, Portland.\\nBefore O\\u2019Connell, Chief Justice, and Benecke, Holman, Tongue, Howell and Bryson, Justices.\", \"word_count\": \"3253\", \"char_count\": \"19073\", \"text\": \"BRYSON, J.\\nThis is an action for wrongful death by plaintiff, administratrix of her deceased husband's estate. The deceased, Otis Ward Elliott, was killed when struck by an automobile operated by defendant Kenney while defendant Kenney was on his way to work for defendant Rogers Construction, Inc. The accident occurred adjacent to Viento State Park on United States Highway 30 about 6:30 a.m. on September 20, 1967.\\nDefendant Rogers Construction, Inc., had a contract with the Oregon State Highway Department to widen U. S. Highway 30 from two to four lanes. The two lanes of traffic open to the public ran next to the Columbia River and north of the two new lanes under construction. (Viento State Park existed on both sides of Highway 30.) The deceased was employed by the Park Division, Oregon State Highway Department, as Park Supervisor of Viento State Park. The State Highway Department provided the deceased a home on the north or river side of the highway directly across from fifteen campsites and the tool shed and equipment storage building on the south side of the highway. The accident occurred opposite the deceased's house as he was crossing a portion of the new roadway, not open to the public for vehicular traffic, on his way to the tool shed and equipment storage building.\\nThe plaintiff alleges that each defendant was negligent and Rogers Construction, Inc., negligent in further separate specifications. In Count Two plaintiff alleges that each defendant was grossly negligent as set forth later in this opinion. The defendants entered general denials and affirmatively charged the plaintiff's decedent with contributory negligence and gross negligence.\\nThe case was tried before a jury. At the conclusion of plaintiff's case, on motion by each defend ant, the trial court entered judgment of involuntarynonsuit against the plaintiff and in favor of each defendant.\\nPlaintiff contends that the trial court erred in ruling that defendant Kenney, as a matter of law, was not acting in the course and scope of his employment with Rogers Construction at the time of the accident.\\nBoth parties rely upon Hantke v. Harris Ice Machine Works, 152 Or 564, 54 P2d 293 (1936). At 568 this court held:\\n\\\"It is a general rule that an accident does not arise in the course of employment when it occurs while the employee is on his way to work and before he has reached the premises of the employer or the place where Ms work is to be done.\\n\\\"The exceptions to this rule are, where the employer furnishes transportation to the place of work or the employee travels over a way expressly or impliedly authorized or acquiesced in by the employer, or while the employee is traveling upon the premises of the employer, or is coming from a place maintained by the employer for the use of the employees as an incident of their employment; or where the employee is using an automobile or other vehicle furnished by the employer or bringing property or money or some report or other document or message connected with or pertaining to the employer's business; or when the master controls or has the right to control the conduct of the servant.\\\"\\nThe evidence discloses defendant Kenney was employed by Rogers Construction, Inc., as a laborer uncovering and moving grade stakes. He commuted daily in his own car from his residence at Hosier, Oregon, to the job site. He was some six to eight miles from the job site at the time of the accident, which occurred about 6:30 a.m., and he was to start work at 7:00 a.m. He was not paid nor reimbursed for his travel or car expense. He was on the uncompleted section of the roadway which Rogers Construction was completing for the Oregon State Highway Department.\\nPlaintiff claims this case falls within two exceptions of Hantke v. Harris Ice Machine Works, supra: \\\"while the employee is traveling upon the premises of the employer,\\\" and \\\"or when the master controls or has the right to control the conduct of the servant.\\\"\\nTo buttress his position that defendant Kenney was traveling upon the premises of the employer, plaintiff cites Kowcun v. Bybee, 182 Or 271, 186 P2d 790 (1947).\\nKowcun was a workmen's compensation case and one of the questions was whether plaintiff sustained the injury in the course and scope of her employment. However, the case can be distinguished on the facts. In Kowcun, the employer owned and provided a parking lot for employees. The plaintiff had parked her car in the employer's lot and was proceeding to the main gate when struck by a car. The employee had arrived at her place of employment and was proceeding as directed by the employer.\\nOn the other exception, in Hanthe \\\"when the master controls or has the right to control the conduct of the servant,\\\" plaintiff relies upon Cook v. United States, 240 F Supp 353 (D Or, 1964); Kowaleski v. Kowaleski, 235 Or 454, 385 P2d 611 (1963); Barry v. Oregon Trunk Railway, 197 Or 246, 253 P2d 260 (1953); Knapp v. Standard Oil Co. of California, 156 Or 564, 68 P2d 1052 (1937); Tyler v. Moore, 111 Or 499, 226 P 443 (1924). Each of these cases can be distinguished on the facts from the case at bar.\\nIn Kowaleski and in Gossett v. Simonson, 243 Or 16, 411 P2d 277 (1966), we approved the definition of scope of employment in the Restatement of Agency 2d, \\u00a7 228, p. 504,\\n\\\"General Statement\\n\\\"(1) Conduct of a servant is within the scope of employment if, but only if:\\n\\\"(a) it is of the kind he is employed to perform;\\n\\\"(b) it occurs substantially within the authorized time and space limits;\\n\\\"(c) it is actuated, at least in part, by a purpose to serve the master, and\\n\\\"(d) if force is intentionally used by the servant against another, the use of force is not unexp.eetable by the master.\\n\\\"(2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.\\\"\\nThe exception, as noted in Hantlce, as to when the master controls or has the right to control the conduct of the servant, has reference to the servant's duties. If the servant has not directly or indirectly entered upon his duties, the exception is not applicable. A plaintiff seeking damages from a servant's employer must prove that the harm-producing activity was in furtherance of the employer's business and that the employer had the right to exercise some degree of control over the workman in the conduct of such activity. Gossett v. Simonson, supra.\\n'Here, as mentioned earlier, defendant Kenney had not entered upon his duties and was performing no act for the benefit of Eogers Construction. The act of defendant Kenney driving his own car in the manner he did at the time of the accident had no connection with the work he was to perform for Eogers Construction, beginning one-half hour later. A supervisor of Eogers Construction knew that defendant Kenney and some other employees who lived east of the job site used the roadway, not open to the public, to reach the job site. However, there is no evidence that they did or could control them, and such employees could drive on U. S. Highway 30 to reach the job site via an underpass which was provided. The underpass was west from the scene of the accident.\\nWe find that the court correctly decided the matter as a question of law and Eogers Construction, Inc., is not liable under the doctrine of respondeat superior.\\nThe court, as a further basis for allowing Eogers Construction, Inc.'s motion for involuntary nonsuit, ruled that plaintiff's decedent was a trespasser or licensee and not entitled to recover as plaintiff did not allege any gross negligence or wanton misconduct on the part of defendant Eogers Construction, Inc. Plaintiff also assigns this as error.\\nIn Count Two of the complaint, plaintiff alleges :\\n\\\"That the defendants, and each of them, were grossly careless, reckless and negligent, and that defendants showed a reckless and wanton indifference to the rights of others in one or more of the following particulars, to-wit:\\n\\\"(1) In operating his vehicle at a highly ex cessive and dangerous rate of speed under the circumstances then and there existing, to-wit: at a speed of approximately 85 miles per hour.\\n\\\"(2) In failing to keep his vehicle under proper or any control.\\n\\\"(3) In fading to keep a proper or any lookout.\\\"\\nIt is easily observed that each of the above allegations refer to the manner in which defendant Kenney was operating his vehicle. We have already concluded that Kenney was not acting in the scope of his employment for Rogers Construction at the time of the accident. Thus, defendant Rogers Construction could not be responsible in a respondeat superior sense for the manner in which Kenney drove his vehicle, whether it was driven in a negligent or grossly negligent manner.\\nBased on the above reasoning, we conclude that the trial court was correct in ruling that there was no gross negligence or wanton misconduct on the part of defendant Rogers Construction, Inc.\\nIn addition to charging defendant Rogers Construction with gross negligence, as set forth above, plaintiff also charges defendant Rogers Construction with separate acts of negligence as follows:\\n\\\"1. In failing to properly control, [and] supervise vehicular traffic on said section of unopened roadway, particularly that of the defendant Kenney.\\n\\\"2. In failing to post adequate signs, barricade or other warning devices about vehicular traffic using said unopened section of roadway.\\n\\\"3. In failing to instruct, supervise, and control defendant Kenney on the vehicular use of said unopened section of asphalt roadway.\\\"\\nWe can assume from the evidence that the State Highway Department was the owner of the land and that Eogers Construction, Inc., had a contract to complete the unfinished section of the roadway. The contract between Eogers Construction and the State Highway Department was not offered in evidence.\\nThere is no evidence of any rights reserved by the State Highway Department for its employees on the unfinished roadway. It is difficult to determine from the record if Eogers Construction, Inc., had the exclusive right to control the unfinished roadway. Evidence does disclose that surveyors and engineers of the State Highway Department were upon the roadway; that Eogers Construction, Inc., knew the deceased Elliott and other Park Department employees were crossing the roadway and moving the truck and mowing machine across the roadway, although they could have used the underpass further west as previously mentioned. It can also be assumed that the deceased Elliott had some knowledge of Eogers Construction, Inc., employees using the unfinished roadway since he lived and worked immediately adjacent to the unfinished roadway.\\nBoth parties agree that the accident occurred on the unopened roadway and that this portion of the roadway was not a highway as defined by ORS 483.010 (2).\\nProsser on Torts (3d ed 1964) \\u00a7 60, at 385, 387 states:\\n\\\"In its broadest sense, the term 'licensee' includes anyone who has a license, which is to say a privilege, to enter upon land. It has sometimes been employed to designate any person who comes upon the land with a privilege arising from the consent of the possessor, including all invitees. But as the word is most commonly used by the courts, it is limited to those who enter with that consent and nothing more.\\n\\\"Such a person is not a trespasser, since he is permitted to enter; bnt he comes for his own purposes rather than for any purpose or interest of the possessor of the land. He has only the consent to distinguish him from a trespasser; and for this reason he is sometimes unflatteringly referred to as a 'bare' or a 'naked' licensee. He receives the use of the premises as a gift, and comes well within the old saying that one may not look a gift horse in the mouth. He has no right to demand that the land be made safe for his reception, and he must, in general, assume the risk of whatever he may encounter, and look out for himself.\\n\\\" .\\n\\\" The permission may of course be tacit, and may be manifested by the defendant's conduct .\\\"\\nA licensee is one who comes upon the premises for his own purposes with the consent of the possessor. Rich v. Tite-Knot Pine Mills, 245 Or 185, 191, 421 P2d 370 (1066).\\nWe conclude that both deceased Elliott and defendant Kenney were licensees upon the unopened roadway.\\nAs to the duty owed to a licensee by an owner or occupant of land, it is generally stated that no duty exists toward a mere, bare, or gratuitous licensee, or licensee by permission, except to refrain from willfully or wantonly injuring him, or, as otherwise stated, to refrain from injuring the licensee through such gross negligence as is equivalent to willfulness or wantonness. 65 CJS Negligence % 63 (32) .\\nCases from other jurisdictions and legal writers do not treat a contractor as an occupier of land but they do say he is clothed with the same immunity as the occupier in respect to his duty of care toward trespassers or licensees upon the land.\\nProsser, speaking of the land occupier's defense in terms of an immunity, says that the immunity \\\" is shared, of course, by members of the possessor's household, by his servants in the course of their employment, and by contractors who are doing work for him on the land. Here again, as in the case of trespassers, the immunity is limited to persons in possession or those acting on their behalf, .\\\" Prosser, Torts 367, 385 (3d ed 1964).\\nThe Restatement approach is to the same effect.\\n\\\"One who on behalf of the possessor of land erects a structure or creates any othe,r condition on the land is subject to the same liability and enjoys the same freedom from liability, as though he were the possessor of the land .\\\" Restatement (Second) Torts \\u00a7 384 (1965).\\nComment (h) to the above-quoted section says that:\\n\\\" the servant or contractor, like the possessor of land is not required to exercise care to prepare a safe place in which to receive licensees. Like the possessor, he is only required to warn them of dangerous conditions of which he knows and of which they are unlikely to be aware.\\\"\\nCases holding to the same effect are: Ireland v. Complete Machinery & Equipment Co., 174 Misc. 91, 21 NYS 2d 430 (1940), wherein the court stated the independent contractor \\\"clothed with the rights of the owner\\\" was only under a duty to plaintiff licensee to abstain from inflicting injury willfully or by active negligence. One who occupies land (contractor) at invitation of owner and for purpose of conferring benefit upon owner should not be required to assume any greater burden of care to prevent injury to licensee than that borne by the owner; Murphy v. Boston & M.R.R., 248 Mass 78, 142 NE 782 (1924); Mikaelian v. Palaza, 300 Mass 354, 15 NE 2d 480 (1938).\\nThus, it can be said that defendant Rogers Construction was not required to prepare a safe place to receive the deceased Elliott. Being \\\"clothed with the rights of the owner,\\\" Rogers Construction was only under a duty to the plaintiff's decedent to abstain from inflicting injury willfully or by active negligence. For these further reasons we conclude that the trial court was correct in granting a nonsuit in favor of defendant Rogers Construction.\\nWe find that the trial court erred in allowing a nonsuit in favor of defendant Kenney.\\nThe plaintiff alleges both simple negligence and gross negligence with reckless and wanton indifference on the part of defendant Kenney. As previously stated, both deceased Elliott and defendant Kenney were licensees upon the unopened roadway.\\nThe duty or standard of care owed by one licensee to another licensee, both on the same land, is to use reasonable care, not to inflict injury on the other. 65 CJS Negligence 63 (32); Coyne v. Pennsylvania R. Co., 87 NJL 257, 93 A 595 (1915); Duel v. Mansfield Plumbing Co., 86 NJL 582, 92 A 367 (1914); Guinn v. Delaware & Atlantic Telephone Co., 72 NJL 276, 62 A 412 (1905).\\nPlaintiff does allege lack of reasonable care on the part of defendant Kenney and there is sufficient evidence to require submitting the matter to the jury.\\nPlaintiff also assigns as error the court's ruling that plaintiff's decedent Elliott was contributorily negligent as a matter of law. We believe the court erred in this respect. This court, in Keys v. Griffith, 153 Or 190, 195, 55 P2d 15 (1936) has stated:\\n\\\"It has been repeatedly held by this court and it seems to be the rule generally that, when a pedestrian, who is about to cross a street or highway, sees an automobile approaching at such a distance from him that would lead a reasonable person to believe he can cross in safety, he has a right to proceed without waiting for the automobile to pass, and is not guilty of contributory negligence in so doing. The question in such a case is: Did the pedestrian use that degree of care for his own safety which an ordinarily prudent person would use in the same place and under the same conditions? And ordinarily this is a question of fact for the jury and not one for the court. [Citing cases.]\\\"\\nThis was affirmed again in Lantis v. Bishop, 224 Or 586, 356 P2d 158 (1960). See cases collected therein.\\nBecause this case will be retried as to defendant Kenney, we call attention to Zumwalt v. Lindland, 239 Or 26, 32, 396 P2d 205 (1964); Cook v. Kinzua Pine Mills Co., 207 Or 34, 293 P2d 717 (1956); Falls v. Mortensen, 207 Or 130, 139, 295 P2d 182 (1956), to the effect that if plaintiff establishes her claim of wanton misconduct on the part of defendant Kenney, as alleged, the defense of contributory negligence would not be available to defendant Kenney.\\nThe case is affirmed as to defendant Rogers Construction, Inc., and reversed as to defendant Fredrick Larry Kenney and remanded for a new trial in conformance with this opinion.\\nTongue, J., concurs in the result.\\nThe owner or occupant of land also owes a duty to a licensee not to injure the licensee through active or affirmative negligence, and to warn of any pitfall or trap known to occupant which might cause injury to the licensee notwithstanding the use of reasonable care or skill. Blystone v. Kiesel, 247 Or 528, 431 P2d 262 (1967). However, the facts of this case do not concern pitfalls or active negligence.\"}"

or/2115245.json

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+"{\"id\": \"2115245\", \"name\": \"STIMSON LUMBER COMPANY, Respondent, v. LARSON, Appellant\", \"name_abbreviation\": \"Stimson Lumber Co. v. Larson\", \"decision_date\": \"1969-11-26\", \"docket_number\": \"\", \"first_page\": \"485\", \"last_page\": \"485\", \"citations\": \"254 Or. 485\", \"volume\": \"254\", \"reporter\": \"Oregon Reports\", \"court\": \"Oregon Supreme Court\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-11T01:11:35.255952+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STIMSON LUMBER COMPANY, Respondent, v. LARSON, Appellant.\", \"head_matter\": \"Argued October 9,\\naffirmed November 26, 1969\\nSTIMSON LUMBER COMPANY, Respondent, v. LARSON, Appellant.\\n461 P. 2d 830\\nG. F. Bartz, Assistant Attorney General, Salem, argued the cause for appellant. With him on the brief were Robert Y. Thornton, Attorney General, and C. N. Byers, Assistant Attorney General, Salem.\\nJoe Bailey, Hillsboro, argued the cause for respondent. On the brief was Carrell F. Bradley, Hillsboro.\", \"word_count\": \"146\", \"char_count\": \"866\", \"text\": \"SLOAN, J.\\nThis is a mandamus proceeding initiated by plaintiff in the tax court to compel defendant, as the county assessor of Tillamook county, to conform to a former decree of the tax court. The tax court entered a peremptory writ. Defendant appeals.\\nThe facts, issues and answers to the issues are fully and correctly stated in the opinion of the tax court found at 3 OTR Adv Sh 401 (1969). That opinion is adopted as the opinion of this court.\"}"

or/2121682.json

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+"{\"id\": \"2121682\", \"name\": \"MORRIS, Appellant, v. OREGON STATE TRANSPORTATION COMMISSION et al, Respondents\", \"name_abbreviation\": \"Morris v. Oregon State Transportation Commission\", \"decision_date\": \"1979-02-06\", \"docket_number\": \"No. 101262, CA 11197\", \"first_page\": \"331\", \"last_page\": \"337\", \"citations\": \"38 Or. App. 331\", \"volume\": \"38\", \"reporter\": \"Oregon Reports, Court of Appeals\", \"court\": \"Oregon Court of Appeals\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T19:29:37.449557+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Schwab, Chief Judge, and Lee, Richardson, and Joseph, Judges.\", \"parties\": \"MORRIS, Appellant, v. OREGON STATE TRANSPORTATION COMMISSION et al, Respondents.\", \"head_matter\": \"Submitted November 20, 1978,\\naffirmed February 6, 1979\\nMORRIS, Appellant, v. OREGON STATE TRANSPORTATION COMMISSION et al, Respondents.\\n(No. 101262, CA 11197)\\n590 P2d 260\\nGatti, Ward & Gatti, Salem, filed the brief for appellant.\\nJames A. Redden, Attorney General, Walter L. Barrie, Solicitor General, and Mary Deits, Assistant Attorney General, Salem, filed the brief for respondents.\\nBefore Schwab, Chief Judge, and Lee, Richardson, and Joseph, Judges.\\nLEE, J.\", \"word_count\": \"1337\", \"char_count\": \"8642\", \"text\": \"LEE, J.\\nIn this action plaintiff alleged that the defendants' negligent maintenance and control of a traffic control device proximately caused her automobile accident and the resulting injuries for which she seeks money damages.\\nPlaintiff was a passenger in a car which was travelling north on 12th street in Salem, Oregon, when an approaching train caused the traffic control signals along that street to immediately change from green to red without a yellow interval. Plaintiff alleged that this sudden change caused the rear end automobile collision in which she was injured.\\nPlaintiff filed an original and three amended complaints. Plaintiff contends that the court erred (1) in sustaining a demurrer to plaintiff's first amended complaint on the ground that the design of the traffic signal was a discretionary determination for which public bodies and their officers, employes and agents are immune from liability, ORS 30.265(3)(c), and (2) in granting summary judgment on the third amended complaint on the basis of immunity. We consider the immunity issue first because resolution of that matter effectively disposes of the other assignments of error.\\nA public body is not liable for negligently performing a discretionary function, but is liable for negligently performing a ministerial function. Smith v. Cooper, 256 Or 485, 495, 475 P2d 78, 45 ALR3rd 857 (1970). The discretionary act exception to the general waiver of governmental immunity contained in the Tort Claims Act is intended to preclude judicial review of certain political decisions which are expressly committed to other branches of government. Moody v Lane County, 36 Or App 231, 233, 584 P2d 335 (1978). Therefore, application of the discretionary act exception requires examination of the statutes and regulations which delegate responsibility as well as an assessment of public policy considerations which enter into the governmental decision. McBride v. Magnuson, 282 Or 433, 437, 578 P2d 1259 (1978); Moody v. Lane County, supra at 234.\\nIn 1975, the legislature enacted ORS 487.853, which provides:\\n\\\"The Oregon Transportation Commission shall adopt a manual and specifications of uniform standards for traffic control devices consistent with the provisions of this chapter and ORS chapter 483 for use upon highways within this state.\\\"\\nThe authority of the Oregon Transportation Commission (Commission) over traffic control signals is set forth in ORS 487.850(2) as follows:\\n\\\"Except at railroad-highway grade crossings,[ ] the commission is authorized to determine the character or type of traffic control signals to be used at places where the commission deems necessary for the safe and expeditious control of traffic. So far as practicable, all such traffic control signals shall be uniform as to type and location. \\\" (Emphasis supplied.)\\nThus, the applicable statutes do not absolutely require all traffic control signals to conform to the uniform standards adopted by the Commission.\\nThe relevant regulations also leave room for the exercise of discretion. With minor exceptions, the Commission adopted the Manual on Uniform Traffic Control Devices for Streets and Highways (Manual) published by the United States Department of Transportation. The general provisions in Part I of the Manual clearly state the Commission's intent:\\n\\\"The decision to use a particular device at a particular location should be made on the basis of an engineering study of the location. Thus, while this Manual provides standards for design and application of traffic control devices, the Manual is not a substitute for engineering judgment. It is the intent that the provisions of this Manual be standards for traffic control devices installation, but not a legal requirement for installation.\\\" (Emphasis supplied.)\\nTherefore, if a decision to use certain traffic control devices at railroad-highway grade crossings concerns design and application, then the Manual may guide but may not control the judgment of a traffic engineer.\\nPlaintiff asserts that defendants must follow rule 4B-21 of the Manual which states in part:\\n\\\"When the green indication is preempted by train operation, a yellow change interval must be inserted (Emphasis supplied.)\\nGenerally, the word \\\"must\\\" would be construed to confer a mandatory duty; however, as explained above, if rule 4B-21 concerns the design and application of a traffic control signal, then the traffic engineer may exercise his judgment.\\nThe words design and application are words of art which are explained in the Manual as follows:\\n\\\"Design of the device should assure that such features as size shape and lighting are combined to draw attention to the device . In the design of a device, minor modifications of specified design elements may be necessary under certain conditions, provided that the essential appearance characteristics are met.\\n\\n\\\"Operation or application should assure that appropriate devices and related equipment be installed to meet the traffic requirements at a given location (Emphasis supplied.)\\nIn the instant case, plaintiff's pleadings and an affidavit submitted by the traffic engineer confirm that the signal was operating as intended and that the preemption feature was not a malfunction. Thus, the decision to use traffic control devices which immediately change from green to red when preempted by a train concerned the design and application rather than the maintenance of the device and rule 4B-21 is not mandatory.\\nHaving determined that the relevant statutes and rules permit the exercise of discretion, we must assess the public policy considerations which entered into the governmental decision. An affidavit submitted by the traffic engineer states:\\n\\\" It was and is judged that an immediate change from green to red is required in the interest of the safety of vehicles which may be stopped on the tracks when a train approaches.\\n\\\" It was not judged that a sign warning that the green light might change suddenly from green to red without a yellow sequence was advisable and such a sign was not erected and will not be erected. Matters considered were: that such signs would have to be erected prior to each intersection, that such signs because of necessary wordage and size would be distracting to the traveling public; that generally signs warning of only occasional occurrences are ineffective; that there was little likelihood of danger to any parties traveling within the speed limit and at a safe distance behind preceding autos; and that the erection and maintenance of such special signs would consume money which might be better utilized elsewhere.\\\"\\nIn addition it should be noted that the traffic control signal in question was installed in 1956 and at that time there was no standard stating that a yellow interval should be used in traffic control signals at railroad-highway grade crossings. Nor do the statutes or regulations provide a schedule for conforming to the standards in the Manual. Therefore the decision whether to modify existing signals to new standards involves public policy considerations such as the availability of funds, public acceptance and order of priorities, which should be decided by the Commission, and are not appropriate subjects of judicial review. See Moody v. Lane County, supra at 234.\\nIn view of our holding that the operation or application of the traffic signal constitutes the exercise of a discretionary function for which public bodies are immune, we do not reach plaintiff's other assignments of error.\\nAffirmed.\\nORS 30.265(3)(c) provides:\\n\\\"(3) Every public body and its officers, employes and agents acting within the scope of their employment or duties are immune from liability for:\\n\\u00ab\\n\\\"(c) Any claim based upon the performance of or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused.\\\"\\nThere appears to be some question whether the Public Utility Commission and the Oregon Transportation Commission have joint jurisdiction over traffic control signals which are located at railroad-highway grade crossings. Neither party raised this issue.\"}"

or/2124806.json

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+"{\"id\": \"2124806\", \"name\": \"McEWEN, Respondent, v. ORTHO PHARMACEUTICAL CORPORATION et al, Appellants\", \"name_abbreviation\": \"McEwen v. Ortho Pharmaceutical Corp.\", \"decision_date\": \"1974-11-15\", \"docket_number\": \"\", \"first_page\": \"375\", \"last_page\": \"421\", \"citations\": \"270 Or. 375\", \"volume\": \"270\", \"reporter\": \"Oregon Reports\", \"court\": \"Oregon Supreme Court\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-09-21T20:02:18.861595+00:00\", \"provenance\": \"Harvard\", \"judges\": \"Before O\\u2019Connell, Chief Justice, and McAllister, Denecke , Holman, Howell, and Bryson, Justices.\", \"parties\": \"McEWEN, Respondent, v. ORTHO PHARMACEUTICAL CORPORATION et al, Appellants.\", \"head_matter\": \"Argued January 10,\\naffirmed November 15,\\npetition for rehearing denied December 10, 1974\\nMcEWEN, Respondent, v. ORTHO PHARMACEUTICAL CORPORATION et al, Appellants.\\n528 P2d 522\\nEdwin J. Peterson, Portland, argued the cause for appellant Ortho Pharmaceutical Corp. With him on the brief were Tooze, Kerr & Peterson, Portland, and Souther, Spaulding, Kinsey, Williamson & Schwabe, Portland.\\nSheila Birnbaum, New York, New York, argued the cause for appellant Syntex Laboratories. On the brief were Bruce Spaulding, and Souther, Spaulding, Kinsey, Williamson & Schwabe, Portland.\\nJ. Harold Williams, of Michaud, Cranmer, Syrios & Post, Wichita, Kansas, and Roger Tilbury, Portland, argued the cause for respondent. With them on the brief were Bruce J. Rothman, and Martindale, Ruben & Rothman, Portland.\\nBefore O\\u2019Connell, Chief Justice, and McAllister, Denecke , Holman, Howell, and Bryson, Justices.\\nDenecke, J., did not participate in this decision.\", \"word_count\": \"11805\", \"char_count\": \"74704\", \"text\": \"HOWELL, J.\\nThis is a negligence action involving the liability of a manufacturer of ethical drugs for its alleged failure to make timely, adequate warnings to the medical profession of dangers which the manufacturer knows, or has reason to know, are inherent in the use of its drug.\\nFreda McEwen brought this action against defendants, Ortho Pharmaceutical Corporation and Syntex Laboratories, Inc. (hereinafter Ortho and Syntex, respectively), to recover damages for blindness in her right eye and injuries to her left eye. In her complaint, Mrs. McEwen alleged that each defendant faded to adequately warn the medical profession concerning the dangerous propensities of its oral contraceptive to cause circulatory and visual damage. She further alleged that her combined use of defendants' drugs resulted in ocular injuries. Both defendants appeal from a jury verdict for plaintiff.\\nDefendants assign a total of 26 errors to the proceedings below, but their principal assignments of error arise from the trial court's denial of defendants' motions for a judgment of involuntary nonsuit and for a directed verdict. In our consideration of the propriety of the trial court's refusal to grant such motions, the plaintiff is entitled to the benefit of every reason able inference which may be drawn from the evidence; such inferences may be drawn from defendants' as well as plaintiff's evidence. Scott v. Mercer Steel/Edwards Realty, 263 Or 464, 466-67, 503 P2d 1242 (1972); Phillips v. Colfax Co., 195 Or 285, 302-03, 243 P2d 276, 245 P2d 898 (1952). Moreover, all evidence must be interpreted in the light most favorable to the plaintiff, and it is beyond our power to weigh or evaluate conflicting evidence. Schweiger et ux v. Solbeck et ux, 191 Or 454, 471, 230 P2d 195, 29 ALR3d 435 (1951). See also Kraxberger v. Rogers, 231 Or 440, 449, 373 P2d 647 (1962); Oregon Constitution, Amended Article VII, \\u00a7 3.\\nOur sole concern is whether there was sufficient evidence to submit the case to the jury. The validity of the trial court's determinations depends upon whether there was substantial evidence that each defendant failed to adequately warn the medical profession of the pertinent dangerous propensities of its oral contraceptive and, if so, whether there was also substantial evidence that this failure caused plaintiff's injuries. With this perspective, we set forth the factual chronology which produced this litigation.\\nDefendants' oral contraceptives involved herein are chemically identical. Syntex calls its product \\\"Norinyl,\\\" while \\\"Ortho-Novum\\\" is the trade name used by Ortho. Each contraceptive consists of 2 milligrams of the progestogen norethindrone and 0.1 milligram of the estrogen mestranol. Syntex and Ortho have coordinated their efforts to discover the dangerous propensities of this compound by sharing information, undertaking joint animal studies, and exchanging reports, of adverse reactions.\\nMrs. McEwen began using Norinyl on December 3, 1966. In the following months she experienced severe headaches, nausea, falling hair, swollen anHes and feet, and a constant backache. Beginning in July, 1967, plaintiff discontinued her use of the drug for three months, and during this period these symptoms subsided. She resumed her use of Norinyl in October. Within a short time she began to experience difficulty with her vision. In November, 1967, plaintiff called Kaiser Hospital in Portland and reported that she was losing the sight in her right eye. The following month she began to cough up blood. On December 20, 1967, an examining physician at Kaiser changed plaintiff's prescription from Norinyl to Ortho-Novum oral contraceptives.\\nDr. Sutton, an ophthalmologist with Kaiser Hospital, examined plaintiff on January 2,1968. He noted that Mrs. McEwen's eyes did not focus properly. He also found her eyeballs to be bulging and diagnosed the condition as nearsightedness. He observed no other abnormalities in her eyes at that time. Plaintiff informed Dr. Sutton that she was taking Ortho-Novum.\\nAbout 11 months later, on December 5, 1968, plaintiff noticed two vivid black lines, come across the field of vision in her right eye. She blinked, and the lines disappeared. Similar lines appeared a few days later, followed by black dots which seemed to fill her right eye. Dr. Neville, an ophthalmologist, examined Mrs. McEwen on December 9, 1968, and observed a growth of abnormal new blood vessels extending out from the retina into the vitreous of her right eye. Dr. Neville further noted a vitreous hemorrhage, in plaintiff's right eye. On December 11, 1968, Dr. Sutton again examined plaintiff, finding retinal hemorrhages and essentially confirming Dr. Neville's diagnosis.\\nMrs. McEwen noticed a change in the vision in her left eye on December 21, 1968, which she described as \\\"streaks or looking through gelatin.\\\" Dr. Burns of the University of Oregon Medical School advised the plaintiff to discontinue her use of oral contraceptives and she did not take Ortho-Novum after December 22,1968. To stop the hemorrhaging, Dr. Burns performed photoeoagulation operations on plaintiff's right eye. Later, Dr. McPherson, a retinal specialist, photocoagulated Mrs. McEwen's left eye.\\nPlaintiff's right eye is totally and permanently blind. Her left eye now tires more easily than before and bears the sears of photoeoagulation.\\nWith these facts in mind, we proceed to the legal issues raised by this appeal. Plaintiff's sole theory of recovery in this, negligence action is founded upon the alleged failure of defendants to adequately warn the medical profession of the dangerous propensities of their oral contraceptives. Therefore, it was for the court to initially determine \\\"whether the defendant owed any duty whatsoever to the plaintiff with respect to the type of harm suffered by the plain tiff Dewey v. A. F. Klaveness & Co., 233 Or 515, 541, 379 P2d 560 (1963) (O'Connell, J., concurring). Next, it was incumbent upon plaintiff to prove that there had been a breach of duty by each defendant. Plaintiff finally had to prove that the negligent acts or omissions of each defendant had been a substantial factor in physically causing the damage of which she complained.\\nWe will first examine the scope of defendants' duty.\\nI. DEFENDANTS' DUTY TO WARN PLAINTIFF'S DOCTORS\\nThere is no question here of any defect in the manufacture of defendants' oral contraceptives, nor of their efficacy when taken as prescribed. It is well settled, however, that the manufacturer of ethical drugs bears, the additional duty of making timely and adequate warnings to the medical profession of any dangerous side effects produced by its drugs of which it knows, or has reason to know. E.g., Sterling Drug, Inc. v. Cornish, 370 F2d 82 (8th Cir 1966); Parke-Davis & Co. v. Stromsodt, 411 F2d 1390 (8th Cir 1969); Stevens v. Parlte, Davis & Co., 9 Cal 3d 51, 107 Cal Rptr 45, 507 P2d 653 (1973); Love v. Wolf, 226 Cal App 2d 878, 38 Cal Rptr 183 (1964); Krug v. Sterling Drug, Inc., 416 SW2d 143 (Mo Sup Ct 1967); see 2 Restatement (Second) of Torts 300, \\u00a7 388 (1965).\\nThe duty of the ethical drug manufacturer to warn is limited to those dangers which the manufacturer knows, or has reason to know, are inherent in the use of its drug. However, the drug manufacturer is treated as an expert in its particular field, and is under a \\\"continuous duty to keep abreast of scientific developments touching upon the manufacturer's product and to notify the medical profession of any additional side effects discovered from its use.\\\" Schenebeck v. Sterling Drug, Inc., 423 F2d 919, 922 (8th Cir 1970); accord O'Hare v. Merck & Co., 381 F2d 286, 291 (8th Cir 1967). The drug manufacturer's duty to warn is, therefore, commensurate not only with its actual knowledge gained from research and adverse reaction reports but also with its constructive knowledge as measured by scientific literature and other available means of communication.\\nAlthough the duty of the ethical drug manu facturer is to warn the doctor, rather than the patient, the manufacturer is directly liable to the patient for a breach of such duty. See Schenebeck v. Sterling Drug, Inc., supra; Love v. Wolf, supra. The manufacturer's compliance with this duty enables the prescribing physician to balance the risk of possible harm against the benefits to be gained by the patient's use of that drug. Moreover, as observed by the court in Sterling Drug, Inc. v. Cornish, supra 370 F2d at 85:\\n[T]he purchaser's doctor is a learned intermediary between the purchaser and the manufacturer. If the doctor is properly warned of the possibility of a side effect in some patients, and is advised of the symptoms normally accompanying the side effect, there is an excellent chance that injury to the patient can be avoided. This is particularly true if the injury takes place slowly\\nAlthough the ethical drug manufacturer's duty to warn has been discussed most often with reference to the prescribing physician, the above reasoning applies with equal force to the treating physician. It is especially important that the treating doctor receive the manufacturer's warnings where it is impossible to predict in advance whether a particular patient is apt to suffer adverse effects from a drug, since the treating doctor may be more likely to observe the actual symptoms of the drug's untoward consequences. If the prescribing physician is entitled to make an informed choice in deciding whether the patient should begin taking a prescription drug, it follows that a treating physician should have the same information in making his decision as to whether the patient should stop taking that drug.\\nThe duty of the ethical drug manufacturer to warn extends, then, to all members of the medical profession who come into contact with the patient in a decision-making capacity. To satisfy this duty, the manufacturer must utilize methods, of warning which will be reasonably effective, taking into account both the seriousness of the drug's adverse effects and the difficulties inherent in bringing such information to the attention of a group as large and diverse as the medical profession. See Sterling Drug, Inc. v. Yarrow, 408 F2d 978 (8th Cir 1969). The warning should be sufficient to apprise the general practitioner as well as the \\\"unusually sophisticated medical man\\\" of the dangerous propensities of the drug. Parke-Davis & Co. v. Stromsodt, 411 F2d 1390, 1400 (8th Cir 1969). In short, \\\"it is incumbent upon the manufacturer to bring the warning home to the doctor.\\\" Eheingold, Products Liability \\u2014 The Ethical Drug Manufacturer's Liability, 18 Eutgers IT L Eev 947, 993 (1964).\\nIt has been suggested, however, that the manufacturer of a prescription drug should be under no duty to warn the medical profession that its product is dangerous when used by certain allergic or hypersensitive users. It is unreasonable, so the argument runs, to impose upon the manufacturer a duty to warn doc tors of dangers threatening a statistically insignificant number of users. We find this argument unpersuasive.\\nIn the field of negligence the duty to warn is limited to those dangerous propensities of the drug of which the manufacturer knows, or has reason to know. If allergic reactions are harder to anticipate, this should be taken into account in evaluating the manufacturer's knowledge. It mus,t be remembered that the negligence liability of the ethical drug manufacturer is restricted to those dangers which are foreseeable.\\nFurthermore, to simply conclude that it is unreasonable to impose liability where the known danger threatens only a statistically small percentage of the drug's users is to beg the very question of negligence. The size of the class of endangered persons is one\\u2014 albeit only one \\u2014 of the factors to be considered in deciding whether the manufacturer's warnings were, in fact, reasonable.\\nThe ethical drug manufacturer is, then, subject to a duty to warn the medical profession of untoward effects which the manufacturer knows, or has reason to know, are inherent in the use of its drug. Sterling Drug, Inc. v. Cornish, supra 370 F2d 82; Parke-Davis & Co. v. Stromsodt, supra 411 F2d 1390; Basko v. Sterling Drug, Inc., 416 F2d 417 (2d Cir 1969); Love v. Wolf, supra 226 Cal App 2d 378; Krug v. Sterling Drug, Inc., supra 416 SW2d 143; cf. Davis v. Wyeth Laboratories, Inc., 399 F2d 121 (9th Cir 1968). See also Wright v. Carter Products, Inc., 244 F2d 53 (2d Cir 1957); Hungerholt v. Land O'Lakes Creameries, Inc., 209 F Supp 177 (D Minn 1962), aff'd 319 F2d 352 (8th Cir 1963); Gerkin v. Brown & Sehler Co., 177 Mich 45, 143 NW 48 (1913). But see Winthrop Laboratories Division of Sterling Drug, Inc. v. Crocker, 502 SW 2d 850 (Tex Civ App 1973).\\nII. WAS THERE EVIDENCE OF BREACH OF DEFENDANTS' DUTY?\\nHaving established that the manufacturer of a prescription drug is under a duty to give adequate and timely warnings to the medical profession of any dangerous side effects of that drug of which the manufacturer has actual or constructive knowledge, we turn to the instant record and consider the question of whether there was sufficient evidence to permit the jury to find that defendants herein failed to satisfy that duty.\\nA. Evidence Considered by the Jury Tending to Establish Each Defendant's Knowledge of the Dangerous Propensities of Its Oral Contraceptive Related to Plaintiff's Injuries\\nBecause the ethical drug manufacturer has only the duty to warn the medical profession of those adverse effects of which it knows, or has reason to know, the adequacy of the warnings given by each defendant depends upon the actual and constructive knowledge of that defendant before and during the period in which Mrs. McEwen used its drug. For Syntex, the relevant interval began on December 3, 1966, when plaintiff first took Norinyl, and ended on December 20, 1967, when she changed to Ortho-Novum oral contraceptives. From that date, plaintiff nsed Ortho-Novum until approximately December 22, 1968, and this is the relevant time span with reference to Ortho's knowledge.\\nBefore discussing the specific items of evidence considered by the jury, we reiterate that the Norinyl and Ortho-Novum pills taken by plaintiff were chemically identical and that the defendants shared information concerning adverse reactions resulting from use of these drugs.\\nNumerous studies, reports and other documents were admitted into evidence and discussed by the expert witnesses. Some of these materials support Mrs. McEwen's contention that defendants knew, or should have known, of the dangerous propensities of their oral contraceptives during the time plaintiff was using them.\\nDr. Wendel, plaintiff's expert witness, testi fied that three studies were undertaken in Great Britain during 1965-66 to determine whether a cause-and-effeet relationship existed between the use of oral contraceptives and thrombosis, thromboembolism and other related vascular diseases. On cross-examination, Dr. Wendel testified that a preliminary report stating the results of these studies was published in the British Medical Journal on May 6, 1967, and that this preliminary report was the \\\"final conclusive convincing evidence\\\" of a cause-and-effect relationship between the ingestion of oral contraceptives and such disorders. Each defendant is. held to have constructive knowledge of this report. O'Hare v. Merck & Co., supra 381 F2d at 291.\\nAnother important investigation was the cooperative two-year oral drug safety study conducted by Ortho and Syntex. The purpose of this study was to determine the effects on rats of norethindrone and mestranol (the components of defendants' oral contraceptives). An interim report received in evidence re ported the findings with reference to rats treated from December 31, 1965, to March 31, 1966. Dr. Wendel testified that this interim report indicated that defendants' oral contraceptives injured the rats' eyes, and that \\\"some of the lesions resemble, to me, very much the lesions found in the retinas of Mrs. McEwen.\\\" One of the rats treated with norethindrone experienced a local retinal hemorrhage.\\nAlso received in evidence was a 1965 article stating the results, of an inquiry into the occurrence of ocular disorders in women using oral contraceptives. Upon cross-examination, Dr. Wendel testified with reference to this report:\\n\\\"Q Do you know of any article by any doctor that implicates oral contraceptives prior to January 1, 1969 with retinal hemorrhages or retinal occlusions ?\\n\\\"A The Walsh article, ja.\\n\\\"Q The Walsh article does?\\n\\\"A As I studied it, among his sixty or some patients there are nine which had ocular lesions which, in my opinion, resembled changes found in Mrs. McEwen.\\\"\\nIn addition to these studies, there was further evidence tending to show that each manufacturer had some knowledge during the relevant time periods of a connection between the use of its oral contraceptive and injuries such as those suffered by plaintiff. For example, the Norinyl package inserts in effect during the period in which plaintiff took that drug included the following warnings:\\n\\\"CONTRAINDICATION S [ ]\\n\\\"1. At this time Norinyl is not recommended in patients with thrombophlebitis or with a history of thrombophlebitis or pulmonary embolism.\\n#\\n\\\"WARNING\\n\\\"Discontinue medication pending examination if there is sudden partial or complete loss of vision, or if there is. a sudden onset of proptosis, diplopia or migraine. If examination reveals papilledema or retinal vascular lesions, medication should be withdrawn.\\\"\\nThe above-quoted admonition concerning loss of vision was added as a \\\"precaution\\\" to the November 1967 Ortho-Novum package insert.\\nAn additional precaution was added to the Ortho-Novum package insert dated December 1967:\\n\\\"10. Because of the occasional occurrence of thrombophlebitis and pulmonary embolism in patients taking oral contraceptives, the physician should be alert to the earliest manifestations of the disease.\\\"\\nThe same Ortho-Novum insert noted thrombophlebitis, pulmonary embolism and neuro-ocular lesions among the side effects observed in patients receiving oral contraceptives. That insert also stated that the clinical laboratory results of coagulation tests indicated that Ortho-Novum affected various characteristics of blood clotting.\\nFinally, the June 1968 package insert for Ortho-Novum revealed the conclusion of the studies, conducted in Great Britain and reported in April 1968 that \\\"there is a seven to tenfold increase in mortality and morbidity due to thromboembolic diseases in women taking oral contraceptives.\\\" The insert further warned the physician to be alert to the earliest manifestation of thrombotic disorders, including retinal thrombosis, and to discontinue the drug immediately if such disorders occurred or were suspected. This insert also stated that \\\"available evidence is suggestive of an association\\\" between the use of Ortho-Novum and \\\"[n] euro-ocular lesions, e.g., retinal thrombosis\\nViewing all the testimonial and documentary evidence in its, entirety, there, was substantial evidence that each defendant knew, or should have known, that its oral contraceptive had a dangerous propensity to cause the kind of harm suffered by plaintiff. This is not to say that defendants did not produce substantial evidence tending to prove that they did not have such knowledge during the relevant times. Our sole function, however, has been completed by our determination that reasonable men might differ upon the point. It was for the trier of fact to resolve the conflict.\\nB. Adequacy of the Warnings\\nWith reference to the adequacy of defendants' warnings, the precise issue, before us may be stated thus: Was there sufficient evidence for the trial court to permit the jury to decide whether reasonable warnings were given to the medical profession by each defendant concerning the pertinent dangers which that defendant knew, or should have known, were inherent in the use of its drug? We conclude, that there was substantial evidence that the warnings of each defendant were inadequate and that the court properly allowed the jury to resolve the negligence question.\\nWe reach this conclusion by superimposing the warnings actually given over the dangers which were foreseeable by defendants. Although there are numerous methods available to the ethical drug manufacturer to communicate with the medical profession, plaintiff and both defendants have focused primarily on the warnings in the relevant package inserts. Since neither defendant contends that it gave more complete information to doctors through any other means, we, too, will emphasize the cautionary instructions found in the inserts.\\nHowever, before examining these warnings, we shall discuss defendants' contention that, as a matter of law, an ethical drug manufacturer discharges its duty to warn the medical profession merely by obtaining approval of its labeling from the Pood and Drug Administration. Under this theory, the drug manufacturer could not be held liable if its warnings were commensurate with those required by the PDA, regardless of the scope of the manufacturer's knowledge of the adverse effects of its drug.\\nDefendants rely chiefly upon the following language in Lewis v. Baker, 243 Or 317, 324, 413 P2d 400 (1966), to support this theory:\\n\\\"* # * \\\"Wq bold that a drug, properly tested, labeled with appropriate warnings, approved by the Pood and Drug Administration, and marketed properly under federal regulation, is, as a matter of law, a reasonably safe product. \\\" (Emphasis ours.)\\nViewed in the context of the entire Lewis opinion, it is not clear that satisfaction of the requirement of \\\"appropriate warnings\\\" was to be achieved by mere compliance with the demands of the FDA. In any event, upon closer examination of the question, we agree with the Supreme Court of California that \\\" [t]he warnings required hy such agencies, may be only minimal in nature and when the manufacturer or supplier knows of, or has reason to know of, greater dangers not included in the warning, its duty to warn may not be, fulfilled.\\\" Stevens v. Parke, Davis & Co., supra 9 Cal 3d at 65. We hold that the warnings given by an ethical drug manufacturer may be found inadequate, \\\" [a]lthough all of the government regulations and requirements have been satisfactorily met in the production and marketing of [the drug], and in the changes made in the literature * Yarrow v. Sterling Drug, Inc., 263 F Supp 159, 162 (D SD 1967), aff'd 408 F2d 978 (8th Cir 1969); accord Stromsodt v. Parke-Davis & Co., 257 F Supp 991 (D ND 1966), aff'd 411 F2d 1390 (8th Cir 1969). See also Alman Brothers Farm & Feed Mill, Inc. v. Diamond Laboratories, Inc., 437 F2d 1295 (5th Cir 1971). Lewis v. Baker, supra, insofar as it conflicts with this principle, is expressly overruled.\\nDefendants, however, imply that the adequacy and timeliness of their package insert warnings were beyond their control, since the warnings were written by the FDA and required by federal law to be included in the inserts. Defendants overlook that portion of the Code of Federal Regulations specifically related to changes in drug labeling and advertising which notify the medical profession of a drug's untoward effects:\\n\\n\\\"(d) Changes of the following kinds should be placed into effect at the earliest possible time:\\n\\\"(1) The addition to package labeling, promotional labeling, and prescription drug advertising of additional warning, contraindication, side-effect, and precaution information.\\n\\\"(2) The deletion from package labeling, promotional labeling, and drug advertising of false, misleading, or unsupported indications for use or claims for effectiveness.\\n\\\"\\n\\\" (e) It will be the policy of the Food and Drug Administration to take no action against a drug or applicant solely because changes of the kinds described in paragraph (d) of this section are placed in effect by the applicant prior to his receipt of a written notice of approval 21 C.F.R. \\u00a7 130.9 (d), (e) (effective Jan. 30, 1965).\\nWith reference to this amended version of 21 C.F.R. \\u00a7 130.9, the following conclusion has been drawn:\\n\\\"Prior to [the January 30, 1965] amendment [of \\u00a7 130.9], the drug manufacturer could argue that the timeliness and the adequacy of the warning in a 'Dear Doctor' letter was beyond its control\\u2014 the FDA dictated when the letter would be sent and the final form that the warning would take . In light of the above regulatory amendment [\\u00a7 130.9 (d), (e)], the drug company should not be permitted to shift responsibility for the timeliness and the adequacy of warning letters to the FDA.\\\" 3 L. Frumer & M. Friedman, Products Liability 263-64, \\u00a7 33.01 (3)(c) (1960).\\nCompliance with federal law did not prevent defendants from giving timely written warnings to the medical profession, either by means of \\\"Dear Doctor\\\" letters or through changes in their package inserts.\\nMoving to the adequacy of the warnings made by the respective defendants in their package inserts, the only inserts relevant to the liability of each defendant are those which were operative when that defendant's oral contraceptive was prescribed for and used by Mrs. McEwen. The warnings given by each defendant will be considered separately.\\nSyntex Warnings on Package Inserts from 12-3-66 when Plaintiff First Took Norinyl through 12-20-67 when Plaintiff Last Took Norinyl\\nThe relevant warnings made by Syntex are found on the Norinyl package insert dated September 1966, which was superseded only after plaintiff eeased using that drug. Under the heading, \\\"side effects,\\\" on this insert, Syntex stated that \\\"the side reactions reported consisted mainly of changes in the menstrual cycle, symptoms resembling early pregnancy, weight gain, nausea, and a few minor, generally transient, subjective complaints.\\\" Under the caption \\\"contraindications,\\\" Syntex added that \\\"[ejxisting evidence does not support a causal relationship between the use of Norinyl and the development of thromboembolism.\\\" The section entitled \\\"laboratory analyses\\\" suggested that there was no significant increase in the risk of thromboembolic death associated with the use of oral contraceptives. The cumulative effect of these \\\"warnings\\\" was a definite assurance that no risk of throm botic disorders was connected to tbe nse of Norinyl, contrary to tbe defendants' actual knowledge.\\nThe September 1966 Norinyl package insert also contained the following cantionary language:\\n\\\"WARNING\\n\\\"Discontinue medication pending examination if there is sudden partial or complete loss of vision, or if there is a sudden onset of proptosis, diplopia or migraine. If examination reveals papilledema or retinal vascular lesions, medication should be withdrawn.\\\"\\n15,16. Dr. Wendel testified that this warning was in fact no warning at all. He observed that retinal vascular lesions are generally irreversible injuries which leave permanent damage, and concluded:\\n\\\"To label [the above-quoted statement] warn ing is, to me, a misnomer because it is not an advance notice of something which may come. What this paragraph says is to do certain things after something has happened already.\\\"\\nTo make a homely analogy, the disputed warning advises that the barn door should be closed after the horses have fled. By failing to notify the medical profession that Norinyl could cause retinal vascular disorders, and by advising that the drug was to be permanently discontinued only after an irreversible injury had been suffered by the patient, this warning did not enable plaintiff's doctors to take corrective action in time to prevent her blindness.\\nAlthough the preliminary report of the British studies was published on May 6, 1967, reporting evidence of a cause-and-effect relationship between the use of oral contraceptives and diseases involving clotting of the blood, Syntex made no mention of these studies in its package insert until May 1968, after plaintiff had stopped taking Norinyl. Moreover, during the relevant time period no mention was made in the Norinyl package insert of the findings of the cooperative rat study with reference to the relationship between oral contraceptives and ocular disorders.\\nWe conclude that there was substantial evidence that Syntex failed to give the medical profession warnings commensurate with its actual and constructive knowledge of the dangers inherent in Norinyl and that the trial court properly permitted the jury to decide the question of Syntex's negligence.\\nOrtho Warnings on Package Inserts from 12-20-67\\nwhen Plaintiff First Took Ortho-Novum, through 12-22-68, the Approximate Date on which Plaintiff Last Took Ortho-Novum\\nVarious package inserts were published by Ortho during the period in which plaintiff used Ortho-Novum. Under the heading \\\"clinical laboratory results\\\" on the insert dated December 1967, Ortho cited a report which stated that \\\"the most recent work on the response of blood coagulation factors to oral contraceptives indicated no statistically significant effect.\\\"\\nThe December 1967 Ortho-Novum insert also contained the warning which, as discussed above, Dr. Wendel found inadequate to enable the physician to prevent permanent damage to the patient's eyes. Dr. Sutton, one of the ophthalmologists who treated Mrs. McEwen, pointed out another possible defect in this warning. Dr. Sutton testified that when plaintiff visited him in January 1968 he was aware that she had complained on November 25, 1967, of losing sight in her right eye. However, the implication of the warning in question was that medication was to be withdrawn only if an examination revealed papilledema or retinal vascular lesions, even if the patient had previously suffered a partial or complete loss of vision. The January examination did not reveal such abnormalities in plaintiff's eyes, and Dr. Sutton did not advise her to stop taking oral contraceptives at that time.\\nMoreover, the following information was included in the December 1967 Ortho-Novum package insert:\\n\\\"The following occurrences have been observed in users of oral contraceptives. A cause-and-effect relationship has been neither established nor disproved :\\n\\\"Thrombophlebitis\\n\\\"Pulmonary embolism\\n\\\"Neuro-ocular lesions\\\"\\nDr. Sutton testified that when he observed retinal hemorrhaging in plaintiff's eyes in December 1968, he relied on such a package insert statement in making his decision not to take, plaintiff off birth control pills: \\\"I read it [the insert] very seriously. And if you read it completely you'll read where it says, 'There is no established cause-and-effect relationship.' \\\"\\nIn addition to those portions of the December 1967 Ortho-Novum package insert which might be misleading or ambiguous, the. jury could have found important omissions. For example, this insert, which remained substantially unchanged until June 1968, made no mention of the British studies. Nor was any mention made of the findings of the Ortho-Syntex cooperative rat study as to the effects of oral contraceptives upon the eye, even though a section entitled \\\"animal studies\\\" was included.\\nViewing the evidence most favorably to plaintiff, there was substantial evidence to support a jury finding that the December 1967 Ortho-Novum insert was inadequate.\\nNo significant changes were made in the Ortho warnings until the publication of the June 1968 package insert. The June 1968 insert, which remained substantially unchanged until after plaintiff discontinued her use of Ortho-Novum, contained Ortho's first notice to the medical profession of the British studies:\\n\\\"WARNINGS\\n\\\"1. The physician should be alert to the earliest manifestations of thrombotic disorders (thrombophlebitis, cerebrovascular disorders, pulmonary embolism, and retinal thrombosis). Should any of these occur or be suspected, the drug should be discontinued immediately.\\n\\\"Studies conducted in Great Britain and reported in April 1968 estimate there is a seven to tenfold increase in mortality and morbidity due to thromboembolic, diseases in women taking oral contraceptives. In these controlled retrospective studies, involving 36 reported deaths and 58 hospitalizations due to 'idiopathic' thromboembolism, statistical evaluation indicated that the differences observed between users and non-users were highly significant.\\n\\\"The conclusions reached in the studies are summarized in the table below:\\n[Table omitted]\\n\\\"No comparable studies are yet available in the United States. The British data, especially as they indicate the magnitude of the increased risks to the individual patient, cannot be directly applied to women in other countries in which the incidences of spontaneously occurring thromboembolic disease may be different.\\\" (Emphasis ours. Footnotes omitted.)\\nDr. Wendel disagreed with the italicized portion of this warning, gave his opinion that the British studies could be applied to American women, and concluded that the information contained in this warning was inadequate.\\nThe June 1968 Ortho-Novum package insert also contained the following information:\\n\\\"ADVERSE REACTIONS OBSERVED IN PA TIENTS RECEIVING- ORAL CONTRACEPTIVES\\nt e Jit jfc jj. m. If TP TP TP TP TP\\n\\\"Although available evidence is suggestive of an association, such a relationship has been neither confirmed nor refuted for the following serious adverse reactions:\\n/ \\u20225!\\u00bb \\u00abU\\u00bb \\u00ab3\\u00a3\\u00bb iU. Jb \\u00bbI TP TP \\u00b6* TP TP\\n\\\"Neuro-ocular lesions, e.g., retinal thrombosis and optic neuritis\\n\\\" (Emphasis ours.)\\nFinally, the June 1968 insert contained the questionable warning discussed above regarding loss of the patient's vision and failed to mention the pertinent results of the Ortho-Syntex cooperative rat study.\\nWe are unable to hold that the warnings given on the June 1968 Ortho-Novum package insert were, as a matter of law, adequate. The trial court properly submitted this question to the jury.\\nIn summary, we hold that there existed substantial evidence tending to prove that both Syntex and Ortho were negligent in failing to make warnings to the medical profession which were reasonable in light of each defendant's respective knowledge of the dangers inherent in the use of its. oral contraceptive. It remains to he determined whether there was also substantial evidence that the negligence of each defendant was, in fact, a substantial factor in producing the injuries suffered by plaintiff.\\nDefendants also contend that this case raises a question of proximate cause insofar as there is no substantial evidence that plaintiff's injuries would not have occurred even if adequate warnings had been given. Essentially, defendants contend that there is no evidence that their negligence caused plaintiff's injuries. This argument is more appropriately directed to the issue of causation in fact, and will be considered next.\\nHI. CAUSE IN FACT\\nThe final element of plaintiff's, cause of action is proof that each defendant's failure to warn was, in fact, a substantial factor in producing the damage complained of. Within this broad question of causation, two sub-issues are implicit. First, we must determine whether each defendant's negligence could be found to be a substantial cause of plaintiff's ingestion of the oral contraceptive manufactured by that defendant. If so, we must then decide whether plaintiff's ingestion of that drug could be found to be a substantial factor in producing her ocular injuries.\\nA. Whether There was Substantial Evidence that\\nthe Failure of Each Defendant to Make Adequate Warnings Regarding the Dangerous Propensities of its Oral Contraceptive was a Substantial Cause of Plaintiff's Ingestion of that Drug?\\nDefendants ask this court to hold as a matter of law that adequate warnings by them to the medical profession would not have prevented plaintiff's, ingestion of their oral contraceptives and, therefore, that their failure to warn did not cause plaintiff's harm. As we understand defendants' thesis, there is no suggestion that doctors would have failed to read adequate warnings or that such warnings, once read, would have been ignored. Rather, defendants contend that for causation to be found, there must be some evidence that if adequate warnings had been given, either plaintiff's prescribing physicians would not have prescribed oral contraceptives in the first place or her treating physicians would have discontinued her use of these drugs in time to avoid her injuries. Defendants assert that there is no evidence as to what any of plaintiff's doctors would have done had there been no negligence.\\nPlaintiff's prescribing physicians did not testify. We need not, however, reach the question of whether there was substantial evidence that a reasonably prudent physician, adequately warned, would not have prescribed oral contraceptives. There was sufficient evidence to permit the jury to find that if adequate warnings had been given, plaintiff's treating doctors probably would have discontinued her use of the drugs in time to avoid permanent injuries.\\nAfter plaintiff resumed her use of Norinyl in October 1967, she experienced adverse effects which could have been connected by a properly warned treating physician to injuries of the type which she ultimately suffered. On November 25,1967, Mrs. McEwen notified Dr. Koehler at the Kaiser Hospital that she was losing the sight in her right eye. Plaintiff called Kaiser again on December 17,1967, and reported that she had been coughing up blood. Both complaints were entered in plaintiff's Kaiser Hospital records, which were received into evidence. Her hospital records also revealed that she had been using Norinyl.\\nAll of the Kaiser physicians who subsequently treated Mrs. McEwen had access to her hospital records. Dr. Bondurant treated plaintiff for coughing up blood at Kaiser on December 18, 1967. Plaintiff returned to Kaiser on December 20, at which time Dr. Tatum changed her prescription from Norinyl to Ortho-Novum. Dr. Sutton, another member of the Kaiser staff who treated plaintiff, testified that he had read the oral contraceptive package inserts before examining plaintiff in January 1968, and that withdrawal of the medication was not recommended if the examination proved normal. Even though he knew that Mrs. McEwen had previously complained of losing sight in her right eye, Dr. Sutton allowed her to continue taking oral contraceptives following the January 1968 examination. Such action was consistent with defendants' warnings. After plaintiff's retinal hemorrhaging had begun, she returned to Dr. Sutton in December 1968. Again, he failed to advise plaintiff to discontinue use of the pills. Again, the jury could have found that Dr. Sutton relied on the package inserts in making this decision.\\nConsidering this testimony, the gravity of the risk involved, and the evidence of plaintiff's cumulative symptoms, there was substantial evidence that if adequate warnings had been timely given to plaintiff's treating physicians by either defendant, plaintiff's use of the oral contraceptives would have been discontinued before her injuries had become irreversible.\\nB. Was Each Defendant's Oral Contraceptive a Substantial Cause of Plaintiff's Injuries'?\\nThe last link in the chain of defendants' negligence liability is the cause-and-effect relationship between plaintiff's ingestion of defendants' chemically identical pills and plaintiff's ocular injuries. All parties agree that hemorrhaging occurred in plaintiff's retinal blood vessels and that the escaped blood penetrated the vitreous of her eyes, ultimately damaging her vision. The cause of this bleeding is the source of disagreement.\\nDefendants characterize the plaintiff's theory of the case as a contention that defendants' oral contraceptive pills cause thromboembolic disease, including retinal hemorrhaging. Defendants contend that: (1) hemorrhaging is the exact opposite of clotting and, therefore, plaintiff eonld not have suffered from a clotting disease; (2) moreover, there is no substantial evidence that plaintiff suffered from a thromboembolic disease of any kind; and, thus (3) the trial court erred in admitting evidence presented by plaintiff relating to diseases, involving blood clots.\\nA more accurate description of plaintiff's theory of the case is that the use of defendants' oral contraceptives increased the propensity of plaintiff's blood vessels to form thrombi (clots) or to otherwise narrow. The result was a closing of her retinal vessels\\u2014 an occlusion \\u2014 and the stoppage of the flow of blood. The culmination of this process was the hemorrhaging which permanently damaged plaintiff's vision.\\nPlaintiff relied chiefly on the testimony of two experts to causally link her ingestion of defendants' drugs to the bleeding in her eyes. First, plaintiff introduced at trial portions of a deposition taken from Dr. Alice McPherson, a medical professor and treating ophthalmologist specializing in retinal diseases. Based upon her personal examination of plaintiff's eyes, Dr. McPherson testified that plaintiff had suffered from hemorrhaging of the retinal blood vessels. The damage to plaintiff's vision resulted from the interaction of this escaped blood with the vitreous in her eyes. Eventually the hemorrhaging caused a complete block age of light in the vitreous of plaintiff's right eye, and thus blindness.\\nDr. McPherson stated that the hemorrhaging was the product of an occlusion of the retinal vessels. During a process known as neovascularization, plaintiff's body reacted to the diminished vascular supply to the retina by growing new blood vessels around the occluded area which were abnormal and weak. The seepage of blood through the vessels' fragile walls resulted in the dot hemorrhages and microaneurysms which Dr. McPherson observed. Contrary to defendants' theory that clotting and hemorrhaging are opposites (and therefore somehow mutually exclusive), Dr. McPherson testified that a blood clot can directly cause such bleeding.\\nDuring examination by defense counsel, Dr. McPherson gave her opinion as to the immediate cause of the occlusion in plaintiff's eyes:\\n\\\"Q You said that occlusion could have been due to thrombosis, but you think it likely wasn't?\\n\\\"A You see, occlusions are due to \\u2014 to occlude something, you either occlude it by pressure or\\u2014 pressure from an outside source or pressure from an inside source on a thrombus or emboli, which blows up there. Well, I don't think she. had an emboli and I don't think she had blood pressure enough to do it, so I think it would probably be thrombosis. But any narrowing of the blood vessels it becomes occluded, we call it a thrombosis.\\\"\\nThe quoted portion of Dr. McPherson's testimony is not a model of clarity. Apparently Dr. McPherson did not believe plaintiff's occlusion to be due either to blood pressure or to emboli (detached clots or other masses occluding blood vessels). However, her testimony can easily he harmonized with plaintiff's theory that the occlusion may have been caused by thrombi (clots which remain attached to the vessel). The quoted testimony could also he interpreted as an opinion that the occlusion resulted either from a thrombus or some narrowing of the vessel unrelated to a blood clot. Either construction is consistent with plaintiff's theory that a thrombus or narrowing of the vessel caused the occlusion. While defendants have pointed out some ambiguity in Dr. McPherson's testimony, this alone is insufficient to overturn the verdict of the jury.\\nPlaintiff relied on the testimony of Dr. Wendel to demonstrate that her ingestion of defendants' pills caused the thrombotic disorder or other narrowing of the blood vessels which, in turn, injured her eyes. Dr. Wendel testified that one effect of defendants' oral contraceptives on the vascular system is an increase in the propensity of the blood to coagulate in the blood vessel, resulting in occlusion of the vessel by thrombosis. He further testified that these oral contraceptives can occlude a blood vessel without the formation of a blood clot:\\n\\\"[T]he effect [of defendants' oral contraceptives] on the vascular system is not just increasing the propensity of the blood to coagulate in the vessel. It can also he changes in the vessel wall, of blood vessels. This means particular thickening of the vessel \\u2014 of the lining of the vessels. And by increasing the thickness, narrowing the diameter of the vessel so less blood, or no blood at all, can go through. It results in the same clinical symptom, no Mood supply, but is something in addition to the formation of a thrombus.\\\"\\nDr. Wendel concluded that the occlusion and neovascularization in plaintiff's eyes were caused by her ingestion of defendants' birth control pills:\\n\\\"A In my opinion, based on the study of the medical records cited by you, the intake of the oral contraceptives Norinyl and Ortho-Novum was the most probable cause of Mrs. McEwen's eye maladies, right and left eye.\\n\\\"Q Would you please explain your answer, Doctor.\\n\\\"A The retinal changes found by the ophthalmologists in the retinas of Mrs. McEwen \\u2014 there is neovascularization, microaneurysms, dot hemorrhages, massive hemorrhages in the retina and into the vitreous body, detachment of the retinas and holes in the retinas called Eale's disease or retinitis proliferans \\u2014 are known, or these changes are known to be connected or associated with various diseases or conditions. There is no one particularly specific cause known which would characteristically cause these changes. Therefore I looked in the records for those causes which, over time, have been considered with more or less evidence as possible causes of these kinds of eye changes, .\\nU\\n\\\"Taking everything together and balancing the various pieces of evidence, there is no indication for tuberculosis; no indication for lupus; no indication for siclde cell anemia. Sarcoidosis \\u2014 the possibility that sarcoidosis could have been the cause is extremely remote. So what remains is hypertension, probably caused or causally connected with the intake of oral contraceptives; chemical diabetes, most likely caused by the intake of oral contraceptives ; and the oral contraceptives themselves, that means by direct action on the blood and/or the blood vessels in the eye. Taking these altogether, on balance, in my opinion, the preponderance of evidence points to oral contraceptives as the most probable canse.\\\"\\nThus, Dr. Wendel supplied the connective link between the plaintiff's physical condition, as observed by Dr. McPherson, and the plaintiff's use of defendants' drugs.\\nIn summary, substantial evidence supported the following elements of causation in plaintiff's theory of the ease:\\n(1) The impairment of plaintiff's vision was caused by bleeding which, extended into the vitreous portion of her eyes.\\n(2) This hemorrhaging was the result of a proliferation of fragile new blood vessels which de veloped following an occlusion of plaintiff's normal retinal blood vessels.\\n(3) The occlusion of plaintiff's blood vessels was probably due to narrowing of the plaintiff's blood vessels or to thrombosis.\\n(4) Defendants' oral contraceptive pills caused this narrowing of the vessels or thrombosis in the plaintiff's eyes.\\nIt is true that defendants presented contrary evidence on many of these points. However, where the factual determinations of the jury are supported by substantial evidence, as they are here, they will not be disturbed.\\nDefendant Syntex makes an additional and independent causation argument: Norinyl could not have been a substantial factor in causing plaintiff's harm because her ultimate injuries did not occur until a year after she discontinued use of that drug. Syntex contends that any adverse effects plaintiff experienced from her use of Norinyl were not irreversible and would certainly have subsided by the time plaintiff's hemorrhaging began. In support of this argument, Syntex points out that when plaintiff discontinued her use of Norinyl for three months in 1967 the symptoms of her adverse effects abated. Moreover, when Dr. Sutton examined Mrs. McEwen in January 1968 \\u2014 after she had stopped taking Norinyl \\u2014 he found no evidence of a visual problem except for bilateral exophthalmos (bulging eyeballs). Syntex places special emphasis on the following testimony of Dr. Wendel:\\n\\\"Q [I]f [plaintiff] had stopped in December of '67 and not taken the pill after that, then there would have been no further difficulty as a result of the pill?\\n# * # #\\n\\\"A Further development. Most likely not. I won't say for certain, but most likely not.\\\"\\nSyntex concludes that there was neither any evidence that plaintiff suffered a retinal hemorrhage while using Norinyl nor any evidence that her injuries were irreversible when she discontinued her use of that drug. It does not, however, necessarily follow that Syntex is not liable for Mrs. McEwen's harm.\\nThe respective liability of multiple defendants depends upon whether the negligence of each was a substantial factor in producing the complained of harm. If both Syntex and Ortho were negligent and their negligence combined to produce plaintiff's injuries, then the negligence of Ortho was concurrent with that of Syntex and does not insulate Syntex from liability. Hills v. McGillvrey, 240 Or 476, 402 P2d 722 (1965). This is true although the negligent omissions of each defendant occurred at different times and without concerted action. Kuhns v. Standard Oil Co., 257 Or 482, 478 P2d 396 (1971). See also Murray v. Helfrich, 146 Or 602, 30 P2d 1053 (1934). Nor is it essential to Syntex's liability that its, negligence be sufficient to bring about plaintiff's harm by itself; it is enough that Syntex substantially contributed to the injuries eventually suffered by Mrs. McEwen. See Escobedo v. Ward, 255 Or 85, 464 P2d 698 (1970).\\nAssuming arguendo that the evidence was insufficient to entitle the jury to find that plaintiff's injuries were irreversible at the time she stopped taking Norinyl, there was ample evidence that plaintiff's ingestion of Norinyl substantially increased the risk of such harm and that the combined effect of Norinyl and Ortho-Novum was the damage to her eyes. Plaintiff took Norinyl from December 3, 1966, until July 1967, and then discontinued her use of oral contraceptives for three months. In October 1967 she resumed her use of Norinyl, and in November 1967 she called the Kaiser Hospital and complained of losing sight in her right eye. She continued taking Norinyl until December 20, 1967, when she changed to Ortho-Novum oral contraceptives. Plaintiff used Ortho-Novum from that date until late December 1968, by which time her retinal hemorrhaging had begun. Norinyl and Ortho-Novum are chemically identical.\\nThere was expert testimony to the effect that the abnormal growth of new blood vessels in plaintiff's eyes resulted from a gradual process. That the effects of the oral contraceptives are cumulative in nature is substantiated by the fact that Mrs. McEwen's retinal hemorrhaging did not begin until approximately one year after she began using Ortho-Novum. Dr. Wendel concluded that \\\"the intake of the oral contraceptives Norinyl and Ortho-Novum was the most probable cause of Mrs. McEwen's eye maladies, right and left eye.\\\" (Emphasis ours.) The lapse of time between the date plaintiff ceased using Norinyl and the time when her injuries culminated was merely another factor for the jury to consider in resolving the causation issue. See American Insurers v. Bessonette, 235 Or 507, 384 P2d 223, 385 P2d 759 (1963).\\nWe conclude that there was substantial evidence that both Norinyl and Ortho-Novum, as taken by Mrs. McEwen, were substantial factors in producing her injuries.\\nIt remained for plaintiff to prove the amount of her damages. Defendants assign error to the admission of expert testimony concerning the amount of plaintiff's future economic loss resulting from her ocular injuries. Dr. Bassett, a professor of economics at the University of Washington, testified in response to plaintiff's hypothetical question. In its original form, the hypothetical assumed plaintiff's total disability, but upon objection it was amended to assume only that \\\"Mrs. McEwen has a permanent injury to both eyes, one of which is blind and the vision in the other eye has been impaired.\\\" The assumption of these injuries was supported by ample evidence in the case, and the hypothetical question, as modified, was proper.\\nAlthough Dr. Bassett answered only the altered form of the hypothetical question, he admitted upon cross-examination that in calculating his answer he had assumed that Mrs. McEwen did not have the ability to work again. After the basis of Dr. Bassett's testimony had been disclosed, counsel for defendants did not move to strike his testimony concerning the amount of plaintiff's future economic loss. On appeal, defendants now contend that because there was no evidence of Mrs. McEwen's total disability, the trial court erred in permitting Dr. Bassett to give an opinion as to the amount of plaintiff's future pecuniary loss based on the assumption that she would not be able to work again.\\nIt is well settled that the facts assumed by an expert must be supported by evidence in the record, \\\"for the reason that a jury must determine the weight to be given the [expert's] opinion, and, without knowledge of what facts the expert accepts as true, an evaluation of his opinion is impossible.\\\" Devine v. Southern Pacific Co., 207 Or 261, 273, 295 P2d 201 (1956); cf. McCormick, Evidence 33 (2d ed 1972). However, it is equally well established that \\\"a motion to strike improper testimony must be made as soon as the ground for such a motion is disclosed.\\\" Wallender v. Michas, 256 Or 587, 592, 475 P2d 72 (1970), and that an objection to proffered evidence not made in the trial court will not be considered for the first time on appeal.\\nWe note that the cross-examination of Dr. Bassett explicitly informed the jury of his assumption of plaintiff's total disability. Moreover, the trial judge instructed the jury that there was \\\"no evidence of total disability\\\" in the case. These circumstances tended to minimize any potential harm to defendants resulting from Dr. Bassett's assumption of a fact not in evidence.\\nCONCLUSION\\nIn summary, substantial evidence supports the trial court's submission of this case to the jury. To further protract this opinion by discussing each of defendants' remaining assignments of error would be unproductive; we have carefully reviewed each contention and find no reversible error.\\nTherefore, the judgment of the trial court is affirmed.\\nAs used herein, an ethical drug means a prescription drug as distinguished from a proprietary or patent drug sold over the counter.\\nSimply defined, the retina is the inside lining of the back of the eye. Stedman's Medical Dictionary 1093-94 (Third unabr. lawyers ed 1972).\\nThe vitreous is \\\"the colorless, transparent gel filling the posterior four-fifths of the eyeball between the retina and the crystalline lens.\\\" Id. at 1401.\\nPlaintiff testified that she last took a birth control pill on December 25, 1968, but alleged in her complaint that she discontinued her use of Ortho-Novum on December 22, 1968.\\nPhotoeoagulation is a process in which an intense beam of light is directed toward the retina of the eye, producing a burn, or coagulation. As the coagulation hardens it produces an adhesive scar. One use of photoeoagulation is to obliterate fragile, abnormal blood vessels which can otherwise result in hemorrhaging.\\nSee Mezyk v. National Repossessions, 241 Or 333, 405 P2d 840 (1965); Prosser, Torts 289, \\u00a7 45 (4th ed 1971).\\n\\\"Causation in fact\\\" is unrelated to \\\"proximate\\\" or \\\"legal\\\" cause, concepts which have been discarded by this court. Kuhns v. Standard Oil Co., 257 Or 482, 478 P2d 396 (1971); Babler Bros. v. Pac. Intermountain, 244 Or 459, 415 P2d 735 (1966); Hills v. McGillvrey, 240 Or 476, 402 P2d 722 (1965). AH questions relevant in setting the limits of liability for conduct which is, in a physical sense, a substantial cause of an injury are to be considered in resolving the issue of negligence. Eliason (Jones) v. United Amusement, 264 Or 114, 121, 504 P2d 94 (1972) (Denecke, J., concurring); Stewart v. Jefferson Plywood Co., 255 Or 603, 469 P2d 783 (1970); Dewey v. A. F. Klaveness & Co., 233 Or 515, 519, 379 P2d 560 (1963) (O'Connell, J., concurring).\\n\\\"\\u00a7 388. Chattel Known to be Dangerous for Intended Use \\\"One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier\\n\\\"(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and\\n\\\"(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and\\n\\\"(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.\\\" 2 Restatement (Second) of Torts 300, \\u00a7 388 (1965).\\nThe application of this rule to drugs such as oral contraceptives has not been without criticism. See Comment, Liability of Birth Control Pill Manufacturers, 23 Hastings J 1526, 1538 (1972); cf. Davis v. Wyeth Laboratories, Inc., 399 F2d 121 (9th Cir 1968).\\nThe practical application of the \\\"idiosyncratic reaction\\\" defense may present serious problems:\\n\\\" [I]n many cases it is medically undetermined whether a type of reaction is to be regarded as idiosyncratic or not, and in many other cases it is impossible to ascertain the specific nature of the user's reaction. \\\" Rheingold, Products Liability \\u2014 The Ethical Drug Manufacturer's Liability, 18 Rutgers U L Rev 947, 1005-06 (1964).\\nAs stated in Stewart v. Jefferson Plywood Co., supra n. 7, 255 Or at 609:\\n\\\"[0]ne is negligent only if he, as an ordinarily reasonable person, ought reasonably to foresee that he will expose another to an unreasonable risk of harm.\\\"\\nA contrary result is not dictated by Cochran v. Brooke, 243 Or 89, 409 P2d 904 (1966), in which we refused to impose absolute liability upon the ethical drug manufacturer for unanticipated adverse effects.\\nThe fact that plaintiff discontinued her use of Norinyl from July 1967 until October 1967 is unrelated to the determination of the relevant period of time in which the knowledge of Syntex is to be considered.\\nDefendants contend that Dr. Wendel was unqualified to testify as an expert. Dr. Wendel graduated from medical school in Germany in 1939, practiced medicine for a short time, and then specialized in pharmacology. Thereafter he was employed by a pharmaceutical company in the United States to conduct or supervise the testing of various drugs. Subsequently he was employed by various other pharmaceutical companies to do research, write package inserts, and perform assorted other functions related to research supervision and the sale of drugs. At the time of the trial, Dr. Wendel was an associate professor of pharmacology at the University of Oregon Medical School. He was not licensed to practice medicine anywhere in the United States.\\nIn Wulff v. Sprouse-Reitz Co., 262 Or 293, 305, 498 P2d 766 (1972), we reiterated the rule that the competency of a witness to testify as an expert is a preliminary matter within the sound discretion of the trial judge. We noted that the question of whether the witness called is the best expert witness on the particular sub ject is a matter bearing on the weight to be given the witness's testimony and not on the qualification of the witness. In the instant case the trial court did not abuse its discretion.\\nMedical Research Council, Risk of Thromboembolic Disease in Women Taking Oral Contraceptives, 2 British Medical J. 355-359 (1967).\\nLater British reports published in April 1968 confirmed the conclusions of the preliminary report and indicated that the risk of venous thrombosis, pulmonary embolism and cerebral thrombosis is actually increased about eight times by the use of oral contraceptives. Inman & Vessey, 2 British Medical J. 193 (1968); Vessey & Doll, 2 British Medical J. 199 (1968). The British findings led an Advisory Committee of the Food and Drug Administration to conclude that \\\"these studies together establish an etiologic relation between thromboembolic disorders and the use of oral contraceptives.\\\" Advisory Committee on Obstetrics and Gynecology, Food and Drug Administration, Second Report on the Oral Contraceptives 6 (Aug. 1969).\\nWalsh, Clark, Thompson & Nicholson, Oral Contraceptives and Nemo-Ophthalmologic Interest, 74 Archives of Ophthalmology 628 (1965).\\nThe \\\"package insert\\\" is a leaflet containing information about the particular drug which it accompanies. It is given to the physician, not the patient.\\nSee IIB infra for our discussion of the adequacy of defendants' warnings.\\nA \\\"contraindication\\\" is \\\"any special symptom or circumstance that renders the use of a remedy or the carrying out of a procedure inadvisable.\\\" Stedman's Medical Dictionary, supra n. 2 at 283.\\nThe foreseeability of neither the precise injury which plaintiff complains of nor the exact manner of its occurrence is a prerequisite of defendants' liability. Rather, negligence liability is \\\"confined to harms actually resulting that are of the general kind to be anticipated from the conduct and to situations in which the person harmed is one of the general class threatened.\\\" 1 Harper & James, The Law of Torts, Introduction at xl (1956). Stewart v. Jefferson Plywood Co., supra n. 7, 255 Or at 608-09. Thus we have held that \\\"it is not necessary that the defendants anticipate the precise consequences of their act.\\\" Danner v. Arnsberg, 227 Or 420, 423, 362 P2d 758 (1961).\\nA question similar to that before us was raised in Stewart v. Jefferson Plywood Co., supra at 609-10:\\n\\\"* - [W] hether plaintiff's injury and the manner of its occurrence was so highly unusual that we can say as a matter of law that a reasonable man, making an inventory of the possibilities of harm which his conduct might produce, would not have reasonably expected the injury to occur. Stated in another way, the question is whether the circumstances are out of the range within which a jury could determine the injury was reasonably foreseeable.\\\"\\nFor example, the report containing the final results and conclusions of the Ortho-Syntex cooperative rat study was introduced by defendants and it tended to contradict the conclusions of Dr. Wendel based on the preliminary report. Numerous other conflicts appear in the twelve volumes of transcript.\\nWritten warnings can be conveyed not only through the manufacturer's labels and package inserts, but also by means of a \\\"Dear Doctor\\\" letter, a communication sent by the manufacturer to all practicing physicians in the United States, informing them about the characteristics or performance of a particular drug. Advertising is also conducted through drug manuals such as the Physicians' Desk Reference. In addition, drug manufacturers can supplement their written warnings by utilizing their \\\"detail men,\\\" who personally call on individual doctors in order to promote their employers' drugs.\\nSee generally Merrill, Compensation for Prescription Drug Injuries, 59 Va L Rev 1, 1-29 (1973); Rheingold, Products Liability \\u2014 The Ethical Drug Manufacturer's Liability, supra n. 10, at 950-70.\\nIn addition to written warnings, other means of notifying the medical profession of newly-discovered adverse effects were available to defendants. Drug manufacturers often employ \\\"detail men\\\" who periodically visit physicians to promote the use of their employers' products. These representatives could also give warnings. See Yarrow v. Sterling Drug, Inc., 263 F Supp 159 (D SD 1967), aff'd 408 F2d 978 (8th Cir 1969).\\nDefendants contend that the adequacy of their warnings was not a proper subject for expert testimony. We disagree. As observed by Mr. Justice Holman in Koch v. Southern Pacific Co., 266 Or 335, 341, 513 P2d 770 (1973):\\n\\\"The factor which determines if a subject is a proper one for expert testimony is whether the answer of an expert can be of appreciable help to the jury. Sandow v. Weyerhaeuser Co., 252 Or 377, 380, 449 P2d 426 (1969). It depends upon whether the subject is such that the expertise of the witness gives him a special insight superior to that of the average juror. \\\"\\nIt is incumbent upon the ethical drug manufacturer to reasonably notify the medical profession, not the public, of all available scientific evidence concerning the risks inherent in its drug. The warnings given by defendants were not directed to Mrs. McEwen, but to her doctors. Dr. Wendel's opinion as to the adequacy of defendants' warnings could have been of substantial assistance to the trier of fact in its resolution of this difficult technical question. This is no less true merely because the matter commented upon was one of the principal or \\\"ultimate\\\" questions of fact to be decided by the jury. Ritter v. Beals, 225 Or 504, 358 P2d 1080 (1961); Welter, Adm'x v. M & M Woodworking Co., 216 Or 266, 338 P2d 651 (1959).\\nDr. Wendel defined the term \\\"retinal vascular lesion\\\" as being \\\"a comprehensive term which includes various pathological changes of the vessels of the retina, such as occlusion of the vessels, thrombosis, inflammation, formation of new vessels, hemorrhage.\\\"\\n\\\"Discontinue medication pending examination if there is sudden partial or complete loss of vision, or if there is sudden onset of proptosis, diplopia or migraine. If examination reveals papilledema or retinal vascular lesions, medication should be withdrawn.\\\"\\nSupra n. 28.\\nThe gist of this argument is unrelated to foreseeability or culpability. Indeed, defendants do not contend that the intervening negligence of a physician exonerates an ethical drug manufacturer from liability flowing from its failure to warn. Such a contention would be contrary to the better reasoned decisions which have considered the point, usually under the rubric of proximate cause. E.g., McCue v. Norwich Pharmacal Co., 453 F2d 1033 (1st Cir 1972); Sterling Drug, Inc. v. Cornish, 370 F2d 82 (8th Cir 1966); Schenebeck v. Sterling Drug, Inc., 423 F2d 919 (8th Cir 1970); Stevens v. Parke, Davis & Co., 9 Cal 3d 51, 107 Cal Rptr 45, 507 P2d 653 (1973); Krug v. Sterling Drug, Inc., 416 SW2d 143 (Mo S Ct 1967); see Restatement (Second) of Torts \\u00a7 447 (1965). But see Oppenheimer v. Sterling Drug, Inc., 7 Ohio App 2d 103, 219 NE2d 54 (1964); Leibowitz v. Ortho Pharmaceutical Corp., 224 Pa Super 418, 307 A2d 449 (1973); Douglas v. Bussabarger, 73 Wash 2d 476, 438 P2d 829 (1968).\\nLikewise, the mere failure of the physician to read all the drug information sent to him by manufacturers may be foreseeable. See Yarrow v. Sterling Drug, Inc., supra n. 25; Merrill, Compensation for Prescription Drug Injuries, supra n. 24, 59 Va L Rev at 25. 45. n. 165.\\nCompare n. 30, supra.\\nPlaintiff testified, without objection, that if she had known at the time of prescription that defendants' oral contraceptives might cause circulatory damage, she would not have taken them. While the duty of the ethical drug manufacturer to warn of dangers inherent in its product is a duty owed to the medical profession, rather than to the patient, it is not unlikely that a properly warned physician would discuss such risks with the patient. See 21 C.F.R. \\u00a7 130.45 (b), (c) (1970).\\nA clot formed during life in a blood vessel is known as a thrombus; it may or may not obstruct the flow of blood through the vessel. Stedman's Medical Dictionary, supra at 1296. It is unclear whether defendants intend the term \\\"thromboembolic\\\" to include all diseases involving blood clotting. If so, the broader term \\\"thrombotic\\\" might be more appropriate. Id. at 1295. Thromboembolic diseases apparently constitute only one class of thrombotic disorders: diseases involving an obstruction or occlusion (closing) of a blood vessel by a thrombus which is dis lodged from the vessel wall and transported to the point of blockage. Id. at 403, 868, 1295. The term thrombotic disease includes any disease relating to, caused by, or characterized by thrombosis (the formation or presence of a thrombus), regardless of whether the clot is detached from the vessel in which it is formed. Id. at 1295.\\nThe record clearly indicates that the plaintiffs theory of the case was not limited to thromboembolic diseases, but also included other diseases involving thrombosis, as well as a narrowing of the vessels unrelated to blood clots.\\nId. at 404.\\nEarlier in the deposition, Dr. McPherson used the term \\\"thrombosis\\\" when referring to a blood clot in a vein. (Stedman's Medical Dictionary, supra n. 32 at 1295, defines \\\"thrombosis\\\" as the formation or presence of a thrombus.) Dr. McPherson also gave her opinion that \\\"any occlusion can be due to thrombosis.\\\"\\n\\\" For medical opinion testimony to have any probative value, it must at least advise the jury that the inference drawn by the doctor is more probably correct than incorrect. If the probabilities are in balance, the matter is left to speculation. \\\" Crawford v. Seufert, 236 Or 369, 375, 388 P2d 456, 2 ALR3d 354 (1964). Defendants contend that although Dr. Wendel testified that their oral contraceptives were the \\\"most probable cause of Mrs. McEwen's eye maladies,\\\" he admitted considering other \\\"possible causes\\\" in arriving at this conclusion, and therefore his opinion was actually based on mere possibilities.\\nDr. Wendel did state that seven diseases or conditions are known in medicine to be associated with the type of retinal changes found in Mrs. McEwen's eyes. However, he then proceeded to explain that four of these \\\"possible\\\" causes were probably unrelated to plaintiff's injuries, in light of the current state of medical knowledge and the results of plaintiff's laboratory tests. The remaining three possibilities were all causally connected by Dr. Wendel to plaintiff's use of oral contraceptives.\\nOn direct and cross-examination, Dr. Wendel's conclusions as to causation were consistently expressed in terms of probability, not possibility. This contrasts sharply with the equivocal, inconsistent medical testimony which we found insufficient in Howerton v. Pfaff, 246 Or 341, 425 P2d 533 (1967). Furthermore, Dr. Wendel's opinion was based on, and supported by, his systematic analysis of the evidence in the case, unlike the expert opinion given in Wintersteen v. Semler, 197 Or 601, 250 P2d 420, 255 P2d 138 (1953). We conclude that Dr. Wendel's expert opinion showed with reasonable certainty the requisite causal connection between plaintiff's ingestion of defendants' oral contraceptives and her subsequent ocular injuries. The law requires no more.\\nWhile Dr. Wendel was of the opinion that defendants' oral contraceptives gave rise to plaintiff's ocular disorder, Dr. Mc Pherson was unable to identify the underlying cause of this disease. Describing plaintiff's condition as \\\"very puzzling and unusual,\\\" Dr. McPherson diagnosed it as \\\"retinitis proliferans [neovascularization of the retina extending into the vitreous (Stedman's Medical Diet., supra n. 2 at 1094)], cause unknown.\\\"\\nAlthough Dr. McPherson testified that blood clotting and hypertension are side effects caused by oral contraceptives, she was of the opinion that defendants' birth control pills had not caused plaintiff's injuries. This conclusion was based on Dr. McPherson's belief that plaintiff's condition had originated before she began taking oral contraceptives. In a letter dated December 19, 1969, Dr. McPherson stated:\\n\\\"Although the etiology of this condition is unknown, and our records do not show the period of time during which the patient took the oral contraceptives, it is my opinion that this ocular pathology is of long standing, and probably started when the patient was much younger and before the introduction of the birth control pills to the market.\\\"\\nAt her deposition, however, Dr. McPherson was equivocal as to the date of origin. She testified that plaintiff's malady had existed for a period of time that \\\"wasn't weeks and wasn't months . The exact time of onset would be relatively unknown.\\\" She also had the \\\"feeling\\\" that the disease was \\\"many, many years\\\" old, but later testified that the abnormal growth of new blood vessels in plaintiff's eyes was a \\\"few years\\\" old and that she could not be specific. Still later, she testified that she could not decide precisely when the hemorrhage had occurred in plaintiff's right eye; nor could she determine the time when the abnormal growth of blood vessels began, because \\\"you can't pinpoint the time when you see it at a later stage.\\\" As for plaintiff's left eye, Dr. McPherson was able only to determine that the occlusion \\\"was of longer standing than just a few weeks or a few months At a later point in the deposition Dr. McPherson expressed her belief that the clotting in plaintiff's right eye originated \\\"quite a few years ago.\\\" Yet her final opinion was that the growth of new vessels in plaintiff's eyes \\\"just looked like it didn't happen in the last three weeks.\\\"\\nContradicting the testimony of Dr. McPherson on this point, Dr. Sutton testified that when he examined plaintiff in December, 1968, he was of the opinion that her retinitis proliferans had developed \\\"most likely within the past year.\\\"\\nConsidering all of the testimony in the light most favorable to plaintiff, it was permissible for the jury to find that plaintiff's disease originated after she began to take birth control pills in 1966.\"}"

or/2128621.json

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+"{\"id\": \"2128621\", \"name\": \"BROWN et ux, Appellants, v. JACKSON, Respondent\", \"name_abbreviation\": \"Brown v. Jackson\", \"decision_date\": \"1974-02-22\", \"docket_number\": \"\", \"first_page\": \"111\", \"last_page\": \"114\", \"citations\": \"268 Or. 111\", \"volume\": \"268\", \"reporter\": \"Oregon Reports\", \"court\": \"Oregon Supreme Court\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-11T02:08:52.120501+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"BROWN et ux, Appellants, v. JACKSON, Respondent.\", \"head_matter\": \"Argued December 4, 1973,\\naffirmed February 22, 1974\\nBROWN et ux, Appellants, v. JACKSON, Respondent.\\n519 P2d 87\\nBay G. Brown, Portland, argued the cause for appellants in propria persona. On the briefs was John R. Sidman,' Portland.\\nEdward II. Warren, Portland, argned the cause for respondent. With him on the brief was Hershiser, Mitchell & Warren, Portland.\", \"word_count\": \"650\", \"char_count\": \"3850\", \"text\": \"HOLMAN, J.\\nPlaintiffs, the owners of residential property in the city of Beaverton, brought this action against defendant, an engineer for the city, to recover both actual and punitive damages claimed to have resulted from the intentional and malicious location of a fire hydrant in front of plaintiffs' residence with the intent to injure plaintiffs. The trial court sustained a demurrer to plaintiffs' complaint and plaintiffs appealed.\\nThe .injury which the plaintiffs allege was intentionally inflicted upon them was their prevention from parking motor vehicles in front of their premises. The defendant contends that plaintiffs have suffered no injuries for which they may secure consequential damages. If defendant's contention is well taken, the other questions raised upon appeal are moot.\\nThe following statement concerning abutting property owners' rights to the use of a street or highway has been quoted with approval in Lowell et al v. Pendleton Auto Co., 123 Or 383, 261 P 415 (1927):\\n\\\"An abutting owner has two distinct kinds of rights in a highway, a public right which he enjoys in common with all other citizens, and certain private rights which arise from his ownership of property contiguous to the highway, and which are not common to the public generally; and this regardless of whether the fee of the highway is in him or not. These rights are property of which he may not he deprived without his consent, except upon full compensation and by dne process of law.\\\" 123 Or at 396-97.\\nThe most common right in the street which attaches to property is that of ingress and egress. That right is not in question here. The right to park in a public street is not a right incident to the ownership of abutting land but rather one which is incident to the use of the street for travel and which is shared by the property owner in common with all other members of the traveling public. Lowell et al v. Pendleton Auto Co., supra at 404-05. 7 Am Jur 2d 793, Automobiles and Highway Traffic \\u00a7 240. Contra, Willard Hotel Co. v. District of Columbia, 23 App DC 272 (1904). In Lowell the court said:\\n\\\"An abutter cannot object to any use of the street which is an incident to public travel, unless such use interferes with the rights which he possesses as an abutting property owner. The right to stop when the occasion demands, generally is an incident of the right of travel. We do not understand that this incidental right which the defendant enjoys, together with all others, when using the street for travel, is one that has caused the plaintiffs any inconvenience or damage; .\\\" 123 Or at 404-05.\\nTherefore, by their being deprived of the right to park, plaintiffs have sustained no peculiar or special deprivation independent of that of the public generally as an incident of the ownership of their property and have suffered no injuries which may be recompensed. Lowell et al v. Pendleton Auto Co., supra at 397. The right is a public one and must be vindicated by the state or for the benefit of the public generally.\\nThe judgment of the trial court is affirmed.\"}"

or/2131358.json

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+"{\"id\": \"2131358\", \"name\": \"JOHN RAY SCHARBROUGH, Appellant, v. CUPP, Respondent\", \"name_abbreviation\": \"Scharbrough v. Cupp\", \"decision_date\": \"1972-01-12\", \"docket_number\": \"\", \"first_page\": \"596\", \"last_page\": \"599\", \"citations\": \"7 Or. App. 596\", \"volume\": \"7\", \"reporter\": \"Oregon Reports, Court of Appeals\", \"court\": \"Oregon Court of Appeals\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-11T00:40:36.358238+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Schwab, Chief Judge, and Foley and Thornton, Judges.\", \"parties\": \"JOHN RAY SCHARBROUGH, Appellant, v. CUPP, Respondent.\", \"head_matter\": \"Argued October 29, affirmed November 11, 1971,\\npetition for rehearing denied January 12,\\npetition for review denied April 18, 1972\\nJOHN RAY SCHARBROUGH, Appellant, v. CUPP, Respondent.\\n490 P2d 529\\nKenneth 8. Solomon, Portland, argued the cause for appellant. With him on the briefs were Solomon, Warren & Killeen, Portland.\\nJohn W. Osburn, Solicitor General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and Jim G. Russell, Assistant Attorney General, Salem.\\nBefore Schwab, Chief Judge, and Foley and Thornton, Judges.\", \"word_count\": \"687\", \"char_count\": \"4239\", \"text\": \"PER CURIAM.\\nWe adopt the findings and conclusions of the post-conviction court as our opinion in this post-conviction proceeding.\\nd-fc * =\\u00a3 \\u2022/; *\\n\\\"FINDINGS OF FACT\\n\\\"1. Petitioner was indicted in Multnomah County Circuit Court for the crime of Assault and Robbery Being Armed with a Dangerous Weapon. He pleaded not guilty, went to trial, was found guilty by verdict of the jury, and was sentenced on November 3,1965 to the Oregon State Penitentiary for a term not to exceed 25 years.\\n\\\"2. [Thereafter] [a]t the request of petitioner, the court on November 19, 1965 vacated that portion of the sentence of November 3, 1965, which imposed the 25 year sentence, and imposed a life sentence after petitioner entered a plea of guilty. The judgment order of November 19, 1965, recites that the prior plea of not guilty was withdrawn. However, this fact is not reflected in the record. After the entry of plea and resentencing, other indictments of armed robbery and assault with a dangerous weapon were dismissed.\\n\\\"3. In his Amended Petition, petitioner seeks to vacate the judgment of November 19, 1965, and reinstates [sic] the earlier judgment on the grounds that:' (1) The circuit court lacked jurisdiction to impose a new sentence; (2) The circuit court lacked authority to vacate a legal sentence, enter an additional plea, and then sentence the petitioner to a greater term; (3) The latter sentence violates the constitutional provisions against double jeopardy; (4) The plea of guilty was coerced by the trial court's participation in the plea bargaining; and (5) The plea of guilty was coerced by the threat of vexatious prosecution.\\n\\\"Based upon the foregoing the Court makes the following\\n\\\"CONCLUSIONS OF LAW\\n\\\"1. As petitioner had not been committed pursuant to the 25 year sentence, and the judgment had not therefore been executed, the Circuit Court still had jurisdiction of the cause. State v. Ludwig, 218 Or. 483; State v. Voshell, 247 Or. 534.\\n\\\"2. Although a sentence cannot he increased once service of the sentence has commenced, the trial court has the power to resentence a defendant, increasing the severity thereof, so long as it is done prior to commencement of service of the lesser sentence. Vincent v. United States, 337 F.2d 891 (8th Cir. 1964). Where the defendant is the moving party, the power of the trial court to so act is even more clear.\\n\\\"3. Because petitioner's sentence was increased prior to his commitment in execution of the judgment, no double jeopardy is involved. Oxman v. United States, 148 F.2d 750 (8th Cir. 1945).\\n\\\"4. The plea of guilty was a nullity and the issue of plea bargaining is therefore irrelevant. The defendant was found guilty by a jury verdict and the 25 year sentence was vacated and a life sentence imposed at the petitioner's request. Petitioner was represented by counsel, was acting under the advice of counsel, and there is no suggestion of incompetence of counsel.\\n\\\"5. Petitioner's contention of vexatious prosecution is without merit.\\n\\\"Based upon the foregoing Findings of Fact and Conclusions of Law, the Court makes the following\\n\\\"JUDGMENT\\n\\\"IT IS HEREBY ORDERED that the Amended Petition for Post-Conviction Relief on file herein be, and the same hereby is, dismissed with petitioner obtaining no relief thereby.\\n( # *\\nAffirmed.\\nOther felony indictments were pending against the petitioner. Prior to November 19, during a conversation between counsel for petitioner and counsel for the state, the latter indicated in effect that if the court had sentenced petitioner to life in prison on the robbery conviction the state would have moved for the dismissal of the other pending felony indictments.\"}"

or/2136339.json

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+"{\"id\": \"2136339\", \"name\": \"FLEET, Appellant, v. MAY DEPARTMENT STORES, INC., Respondent\", \"name_abbreviation\": \"Fleet v. May Department Stores, Inc.\", \"decision_date\": \"1972-09-08\", \"docket_number\": \"\", \"first_page\": \"592\", \"last_page\": \"605\", \"citations\": \"262 Or. 592\", \"volume\": \"262\", \"reporter\": \"Oregon Reports\", \"court\": \"Oregon Supreme Court\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-11T02:07:53.887910+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before O\\u2019Connell, Chief Justice, and Denecke, Holman, Tongue, Howell and Bryson, Justices.\", \"parties\": \"FLEET, Appellant, v. MAY DEPARTMENT STORES, INC., Respondent.\", \"head_matter\": \"Argued May 5,\\nreversed with instructions September 8, 1972\\nFLEET, Appellant, v. MAY DEPARTMENT STORES, INC., Respondent.\\n500 P2d 1054\\nPaul B. Duden, Portland, argued the cause for appellant. With him on the briefs were Edwin J. Peterson and Tooze, Powers, Kerr, Tooze & Peterson, Portland.\\nCleveland C. Cory, Portland, argued the cause for respondent. With him on the brief were Clarence ft. Wicks, Charles P. Hinkle, and Davies, Biggs, Strayer, Stoel & Boley, Portland.\\nBefore O\\u2019Connell, Chief Justice, and Denecke, Holman, Tongue, Howell and Bryson, Justices.\", \"word_count\": \"3048\", \"char_count\": \"18341\", \"text\": \"HOWELL, J.\\nPlaintiff filed this action for damages, charging defendant with false imprisonment in her first canse of action, and malicious prosecution in the second. The jury returned a verdict for plaintiff on both, plus punitive damages in the cause of action for malicious prosecution. The trial court entered a judgment n.o.v. on both causes of action and alternatively ordered new trials. Plaintiff appeals.\\nThe evidence received was as follows. Plaintiff testified that she went to defendant's store in the Lloyd Center in Portland to purchase some sunglasses. She walked to the first of two counters displaying sunglasses and selected two pair. Plaintiff testified that she had lots of time and was \\\"browsing\\\" around, looking at counters of beads, handbags and scarves. She was holding the sunglasses in her hand and carrying her purse over her arm as she walked down the aisle toward another counter displaying more sunglasses and a counter of greeting cards.\\nPlaintiff was arrested for shoplifting while she was standing near the greeting card display. Plaintiff testified:\\n\\\"Q. Describe for ns what happened when Mrs. LeCornu [store detective] came up to you at the card counter.\\n\\\"A. Well, she came up behind me and tapped me on the shoulder, and said had I made a mistake back there, or had I forgotten something, or something like that. And I said no, I hadn't. And she said, 'Well, yon haven't paid for these glasses.' And I said, 'Well, I'm not through.' And she said, well, she was a store detective, or something like that, and I'd better come downstairs with her, which I did.\\\"\\nThe store detective who arrested plaintiff had finished her training in security about one month before the incident. Her testimony contradicted plaintiff's in several particulars. She testified that plaintiff acted suspiciously and kept looking around while trying on the glasses. She also stated that plaintiff removed the price stickers from the glasses and carried the glasses between her body and the purse. She estimated plaintiff had moved approximately 150 feet after she selected the glasses and that plaintiff could have paid for the glasses at one of the two sunglass counters. However, she stated that there was no cash register at the display where plaintiff selected the glasses.\\nPlaintiff testified that it was possible that she removed the price tags but to the best of her recollection she did not.\\nAfter being arrested, plaintiff was taken to a downstairs room where she remained for 45 minutes to one hour. She was questioned for 15 or 20 minutes by the store detective, and later by another individual who started to look through her billfold. When plaintiff told him he had no right to do so, he ceased, but told plaintiff, \\\"Well, we can search you completely if we wanted to.\\\" The store detective wrote out a confession and told plaintiff she had to sign it, but she refused. The police were called and subsequently defendant charged plaintiff with petty larceny under a city ordinance. Plaintiff was acquitted.\\nThe jury returned a verdict for plaintiff, and the trial court granted the judgment n.o.v. on plaintiff's cause of action for false imprisonment on the grounds that defendant had reasonable cause to believe plaintiff had committed the crime of shoplifting and that the detention of plaintiff was also reasonable.\\nThe rule is well established in this state that the question of whether \\\"reasonable eause\\\" existed for defendant to believe plaintiff had committed the crime of shoplifting is one of law for the court to decide. Delp v. Zapp's Stores, 238 Or 538, 542, 395 P2d 137 (1964); Lukas v. J. C. Penney Co., 233 Or 345, 361, 378 P2d 717 (1963). However, when the facts are in dispute, the court submits the evidence to the jury with instructions as to what will amount to reasonable cause if proved. Lukas v. J. G. Penney Go., supra. The sole function of the jury is to determine the facts.\\nIn the instant case the facts relating to the questions of reasonable eause to arrest were clearly in dispute, particularly as to whether plaintiff was \\\"browsing\\\" or acting suspiciously, whether plaintiff removed the price tags, and the manner in which plaintiff was carrying the glasses \\u2014 in her hand or concealed between her purse and her body. The trial court allowed the jury to resolve the disputed facts and instructed them as to what facts constituted \\\"reasonable cause.\\\" This was the appropriate procedure to follow in the instant case, and it was error for the court to set aside the verdict.\\nThe question of whether plaintiff's detention was reasonable was also a question for the jury. Delp v. Zapp's Stores, supra at 545; Lukas v. J. C. Penney Co., supra at 362. The jury was entitled to consider whether a detention of 45 minutes to an hour, the presence of four employees, the examination of plaintiff's billfold, references to a complete search of plaintiff, and the statement that plaintiff had to sign the confession constituted a reasonable detention under the circumstances. Therefore, it was also improper for the court to conclude that the detention was reasonable as a matter of law.\\nThe judgment n.o.v. should not have been granted as to plaintiff's first cause of action.\\nThe court also allowed defendant's alternative motion for a new trial on plaintiff's cause of action for false imprisonment. The order was based in part on the defendant's motion and in part on the court's own motion. We conclude that the court erred in both instances.\\nIn the motion for a new trial, defendant contended, and the court agreed, that the court erred in failing to give an instruction that the store detective did have reasonable cause for believing that plaintiff had committed the crime of shoplifting. This was tantamount to directing a verdict on this feature and was properly refused, because, as we have stated previously, the evidence was conflicting and presented a question for the jury.\\nThe court also granted a new trial on defendant's motion for failure to give all of the following requested instruction:\\n\\\"If you find from a preponderance of the testimony and evidence in this case that defendant's security employees, in detaining and questioning the plaintiff, did so in a reasonable manner and for a reasonable time, the plaintiff would have no right to recover damages from the defendant for false arrest or false imprisonment, and your verdict should be against the plaintiff and in favor of the defendant on plaintiffs first cause of action.\\\"\\nThe court gave all of the above instruction except the part italicized. Granting a new trial on this ground was patently erroneous. See Ginter v. Handy, 244 Or 449, 419 P2d 21 (1966).\\nThe trial court also granted a new trial on its own motion on plaintiff's first cause of action, because of four instructions given the jury. While the trial court is authorized to grant a new trial on its own motion because of errors of law, although no objections were made or exceptions taken during the trial, the rule has an important qualification: \\\" [T]he error must have been prejudicial and it must have prevented the party from having his case fairly presented and tried, Timmins v. Hale, 122 Or 24, 32, 256 P 770 (1927).\\nIt is not necessary to set forth all the instructions verbatim. The court instructed the jury that the first cause of action involved the issues of whether defendant had reasonable cause to arrest plaintiff and whether the detention was reasonable; if probable cause to arrest existed, the jury still must decide if the detention was reasonable. These were proper instructions.\\nThe court also instructed the jury that a merchant may detain a person suspected of a crime only for the purpose of investigating the crime and not for some other purpose.\\nThe defendant argues that the instruction would allow the jury to infer that a merchant could not ask a suspected shoplifter his name and address or back ground information. We do not believe a jury could be so misled; such questions are normal and relate to the investigation of a crime.\\nThe remaining instruction reads:\\n\\\"You will find defendant had such reasonable cause \\u2014 if you find from the preponderance of the evidence that the defendant had reasonable cause to believe that plaintiff was wilfully concealing or took possession of goods offered for sale by defendant without the knowledge or consent of the defendant, with the intent to convert goods to her own \\u2014 to her own use without paying the purchase price for the goods, if you should not so find, you'll find that it did not have reasonable cause.\\\"\\nThe defendant contends that the court should have instructed the jury to (1) determine what facts would, and what facts would not, amount to reasonable cause; (2) determine what the facts and circumstances surrounding plaintiff's arrest were; and (3) then determine whether the facts as found were such as to establish or not establish reasonable cause.\\nThe defendant took no exception to the instruction. If it wanted an instruction as indicated above, it should have so requested. In fact, the instruction given was almost exactly the same as the one requested by defendant.\\nWe find that no error was committed by the court d\\\\iring trial of plaintiff's first cause of action, and it was therefore error for the court to enter a judgment n.o.v. or order a new trial in the alternative.\\nThe trial court also granted a judgment n.o.v. on plaintiff's second cause, of action for maiicious prosecution on the grounds that the evidence failed to show that defendant acted without probable cause and with malice in prosecuting plaintiff for petty larceny under the Portland municipal ordinance.\\nAs in plaintiff's cause of action for false imprisonment, the question of whether there existed probable cause for defendant to initiate a criminal action is one of law. Shoemaker v. Selnes et al, 220 Or 573, 581, 349 P2d 473, 87 ALR2d 170 (1960); Kuhnhausen v. Stadelman, 174 Or 290, 310-11, 148 P2d 239, 149 P2d 168 (1944). \\\"Where the facts under which the defendant acted are in dispute, it is the function of the jury, not the court, to resolve the dispute. Under such circumstances, the court is required to submit the disputed questions of fact to the jury with instruction that certain facts, if found to exist, do or do not constitute probable cause. Shoemaker v. Seines, supra at 581.\\nAs we have related above, a substantial conflict existed in the evidence, particularly as to whether plaintiff removed the price tags; whether the glasses were concealed by plaintiff; and whether plaintiff's actions were suspicious, or were merely the actions of one browsing in a store. This being the case, it was the duty of the trial court to submit the disputed questions of fact to the jury.\\nRegarding the question of malice, the test is whether the defendant's conduct was motivated by a purpose other than to bring plaintiff to justice. Prosser, Torts 848, \\u00a7 119 (4th ed 1971) ; 1 Harper & James, The. Law of Torts 320, ^ 4.6 (1956): 1 Restatement of Torts 423, \\u00a7 668. See Stamper v. Raymond, 38 Or 16, 22, (52 P 20 (1900). \\\"Where there has been a criminal prosecution, instituted without probable cause, the jury is permitted, but not required, to infer malice. Ira v. Columbia Food Co. et al, 226 Or 566, 574, 360 P2d 622, 86 ALR2d 1378 (1961).\\nAs mentioned above the facts surrounding the question of probable cause were in dispute. Therefore, the jury was entitled to consider whether the defendant's conduct was malicious.\\nThe judgment n.o.v. on the second cause of action should not have been granted.\\nThe trial court allowed a new trial for having given the following instruction:\\n\\\"It's claimed by the plaintiff in her second cause of action that the defendant acted maliciously and without probable cause in obtaining and prosecuting the complaint against the plaintiff in Municipal Court.\\n\\\"In this connection, I instruct you that the plaintiff must prove to you by a preponderance of the evidence that the proceedings were initiated without probable cause, and primarily because of a purpose other than that of bringing the plaintiff to justice. I instruct you that the proceedings against the plaintiff were initiated without probable cause if you find the defendant to not have an honest and reasonable belief to support each of the following elements of the crime charged:\\n\\\"One, that the plaintiff intentionally stole, took and carried away the property of the defendant;\\n\\\"Two, the plaintiff in so taking, stealing and carrying away said property intended to deprive the defendant of the prope'ty permanently; and\\n\\\"Three, the defendant did not consent to the carrying away of the property.\\\"\\nDefendant argues that the words \\\"carried away\\\" in the above instruction could have led the jury to believe that it was necessary for plaintiff to have taken the sunglasses out of the store before she would be guilty of petty larceny. Asportation, or \\\"carrying away\\\" as the term is generally defined in instructions to the jury, is a necessary element of the crime of petty larceny. If the defendant wanted a more restrictive instruction to the effect that asportation could have been accomplished without the plaintiff removing the sunglasses from the store premises, it should have presented such an instruction to the court.\\nIn any event, it is difficult to see how plaintiff could have been prejudiced by the court giving the instruction on petty larceny, which was the crime charged against plaintiff by defendant. Immediately following this instruction, the trial court gave an instruction defining shoplifting and then gave defendant's requested instruction as follows:\\n\\\"If you find that the plaintiff did, in fact, wilfully conceal or take possession of the sunglasses without the knowledge or consent of Meier & Frank Company, Lloyd Center store, and with the intent of converting the sunglasses to her own use without paying the purchase price thereof, then she cannot recover from the defendant in this case, and your verdict must be against the plaintiff and in favor of the defendant on both plaintiff's causes of action.\\\"\\nThe court told the jury that they must find for defendant if plaintiff \\\"wilfully concealed or took possession of the glasses.\\\" In effect, the jury was told that defendant had probable cause to believe that plaintiff had committed the crime of petty larceny if plaintiff concealed the glasses. This dispels any notion that it was necessary for plaintiff to carry the glasses out of the store before defendant had probable cause.\\nThe last question presented is whether the trial court erred in an instruction on punitive damages and in submitting punitive damages on plaintiff's second cause of action to tlie jury. We find no error in the instruction.\\nAs to the propriety of the court submitting the question of punitive damages to the jury, this court stated the following in Alvarez v. Retail Credit Ass'n, 234 Or 255, 381 P2d 499 (1963);\\n\\\"In this state, if there is enough evidence of want of probable cause and of malice to go to the jury at all, then the element of punitive damages must remain in the case. \\\" 234 Or at 266.\\nDean Prosser states the following regarding the awarding of punitive damages in a malicious prosecution case :\\n\\\"Because of the intentional and outrageous nature of the tort, malicious prosecution is peculiarly adapted to the award of punitive damages, and it is agreed generally that the jury may award them when they find personal ill will or oppressive conduct in the prosecution.\\\" Prosser, Torts 850, \\u00a7 119 (4th ed 1971).\\nWe conclude that the case was fairly tried and without error in the instructions. The fact that the verdict was substantial is not a factor to be considered. The trial court erred in granting a judgment n.o.v. on both causes of action and granting new trials in the alternative.\\nReversed with instructions to reinstate the original judgment.\\nThe court is not required to submit disputed facts to the jury in every instance. The court may conclude as a matter of law, considering the evidence in the light most favorable to the plaintiff, that reasonable cause existed to believe plaintiff committed the crime of shoplifting. Delp v. Zapp's Stores, 238 Or 538, 542, 395 P2d 137 (1964). However, in the instant case, considering the evidence most favorably to plaintiff, defendant did not have \\\"reasonable cause\\\" to believe plaintiff had committed the crime of shoplifting.\\nThe court gave the following instruction which is one of the standard Jury Instructions prepared by the Oregon State Bar:\\n\\\"If you have found that plaintiff is entitled to general damages on the second cause of action, you shall then consider whether to award punitive damages on the second cause of action. Punitive damages are awarded to the plaintiff in addition to general damages, in order to discourage the defendant and others from engaging in wanton misconduct. Wanton misconduct is conduct amounting to a deliberate disregard of the rights of others, or of reckless indifference to such rights.\\n\\\"In considering punitive damages, you first must determine whether the defendant was guilty of wanton misconduct, which was a cause of damage to the plaintiff. If you decide this issue against the defendant, you may award punitive damages, although you're not required to do so, since punitive damages are discretionary.\\n\\\"If you decide to award punitive damages, you may properly consider the following items in fixing the amount:\\n\\\"First, the character of the defendant's conduct;\\n\\\"Second, the defendant's motive; and\\n\\\"Third, the amount of damages, which will be required to discourage the defendant and others in engaging in such conduct in the future. The amount of punitive damages may not exceed the sum of $10,000.00.\\\"\"}"

or/2140141.json

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+"{\"id\": \"2140141\", \"name\": \"ENGELCKE, Respondent, v. STOEHSLER et ux, Appellants\", \"name_abbreviation\": \"Engelcke v. Stoehsler\", \"decision_date\": \"1975-12-31\", \"docket_number\": \"\", \"first_page\": \"937\", \"last_page\": \"946\", \"citations\": \"273 Or. 937\", \"volume\": \"273\", \"reporter\": \"Oregon Reports\", \"court\": \"Oregon Supreme Court\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-11T00:04:28.554894+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before O\\u2019Connell, Chief Justice, and McAllister, Holman, Tongue, Howell, and Bryson, Justices.\", \"parties\": \"ENGELCKE, Respondent, v. STOEHSLER et ux, Appellants.\", \"head_matter\": \"Argued September 10,\\naffirmed in part; reversed in part and remanded December 31, 1975\\nENGELCKE, Respondent, v. STOEHSLER et ux, Appellants.\\n544 P2d 582\\nAlan M. Lee, Klamath Falls, argued the cause for appellants. With him on the brief was Smith & Lee, Klamath Falls.\\nBlair M. Henderson, Klamath Falls, argued the cause and filed a brief for respondent.\\nBefore O\\u2019Connell, Chief Justice, and McAllister, Holman, Tongue, Howell, and Bryson, Justices.\", \"word_count\": \"2043\", \"char_count\": \"12133\", \"text\": \"HOLMAN, J.\\nPlaintiff brought an action against defendants upon a check which was not paid because of insufficient funds and upon a promissory note. Defendants counterclaimed for the breach of an oral lease of farm land for five years on a share cropping basis. At the conclusion of defendants' proof the trial court sustained a demurrer to defendants' counterclaim and directed a verdict in favor of plaintiff upon both the note and the check. Defendants appeal.\\nPlaintiff is the owner of a 150-acre ranch and in April, 1971, entered into some sort of an oral agreement, the exact terms of which are in dispute, to lease it to defendants, one-third of the crop to plaintiff and two-thirds to defendants. At the same time plaintiff loaned defendants the sum of $6,000 for which defendants gave a promissory note which contained no maturity date but which provided that six percent interest was payable annually.\\nDefendants thereafter took possession of the ranch and commenced farming it. At the conclusion of 1971 a partial payment of the principal and interest on the note was made from the proceeds of the grain crop. A hay crop was also harvested in 1971 but was not sold, and remained in a- hay shed on the ranch. In 1972 the first alfalfa cutting was sold during the summer. The second cutting was stored in the hay shed pending its anticipated sale. On September 15, 1972, the hay shed burned to the ground. The second 1972 alfalfa cutting and the. 1971 hay crop, along with all other contents, were destroyed by the fire.\\nShortly after the fire, defendants, on October 21, 1972, issued plaintiff a check representing plaintiff's share of the proceeds from the first 1972 alfalfa cutting sold earlier that summer. Plaintiff attempted to cash the check on October 27, 1972, but it was returned unpaid by the bank due to insufficient funds. Plaintiff commenced this action on February 20, 1973, to collect on the note and to recover on the check. In March of 1973 plaintiff ordered defendants off the ranch.\\nAt trial the court, over plaintiff's objection, admitted evidence to the effect that the parties orally agreed at the time of .execution of the note that the note was to be paid over a period of five years from its date. Also over plaintiff's objection, the trial court received defendants' evidence to the effect that the parties orally agreed at the time the check was issued that plaintiff would not present the check for payment until defendants received the proceeds from an insurance claim filed in connection with the destruction of the hay shed. At the close of defendants' ease on their counterclaim, however, the trial court granted plaintiff a directed verdict' on both the promissory note and the check. At that time plaintiff also renewed her demurrer, previously filed, to defendants' counterclaim on the ground that the oral lease violated the statute of frauds. Defendants in response moved the court to amend their pleadings to conform to their proof to interpose allegations of equitable estoppel sufficient to remove the agreement from the statute of frauds. The trial court sustained plaintiff's demurrer and denied defendants' leave to amend.\\nDefendants claim the trial court erred in granting a directed verdict upon the note because the trial court should have submitted to the jury the issue of whether the parties agreed that the note was for a period of five years. It is unnecessary for this court to consider this issue because the defendants in their testimony admitted that the payment of the interest due by the terms of the note on April 3, 1972, was delinquent when plaintiff's complaint was filed. By the terms of the note the entire sum of both principal and interest was due if the interest became delinquent. The trial court did not err in directing a verdict upon the note.\\nDefendants also contend the trial court erred in granting a directed verdict upon the check because of defendants' testimony to the effect that the parties orally agreed that the cheek was not to be effective and should not be presented for payment until defendants received the insurance money from the destruction of the hay crops by fire. Parol evidence is admissible to show that the check was not to be operative as a binding obligation until the occurrence of some condition precedent. Osburn v. Lucas, 263 Or 480, 483, 502 P2d 1382 (1972); Brady, Bank Checks 62-63, \\u00a7 3.6 (4th ed 1969); Britton, Bills and Notes 128, % 54 (2d ed 1961). The issue should have been submitted to the jury and the trial court was in error in directing a verdict upon the check.\\nPlaintiff contends that the insurance proceeds had been received by the time of trial and, therefore, the check was payable at that time and the judgment should be sustained. This is an action on the check, not on the underlying debt. The drawer is liable upon the check only if the bank on proper presentment refuses to honor it and the holder thereafter gives the necessary notice of dishonor and protest, ORS 73.1020 (l)(d), 73.4130(2); White and Summers, Uniform Commercial Code 411, \\u00a7 13-9 (1972). Proper presentment to the bank was a condition precedent to defendants' liability. If there was a condition precedent to the effectiveness of the check, as defendants contend, the presentment prior to the time it was a binding obligation was a nullity because it was not intended to be a valid check at that time. There was no evidence of any presentment subsequent to the receipt by defendants of the proceeds of the insurance.\\nThe last issue raised is the failure of the trial judge to allow the defendants to amend their counterclaim in conformance with the proof to allege that plaintiff was estopped to assert the bar of the statute of frauds. Defendants.' original counterclaim alleged that plaintiff and defendants entered into \\\"an oral agreement for the lease of land for farming purposes for a period of five (5) years\\\" and that \\\"in consideration of said lease, Defendants were to pay to the plaintiff one-third (%) of the proceeds of the hay/grain crop taken from said property, and thereafter did so for a period of two years.\\\" Defendants further alleged that plaintiff breached the agreement by ordering them off the property, and that they were damaged thereby.\\nAt the commencement of trial plaintiff demurred to the counterclaim upon the basis that, as an oral agreement to lease real property for longer than one year, it violated the statute of frauds. ORS 41.580(5). The demurrer was overruled. Plaintiff renewed the demurrer at the close of her evidence, but before defendants' presentation on the counterclaim, and it was again overruled. At the close of defendants' case plaintiff again asserted the demurrer; defendants moved the court to amend their pleadings to conform to the proof by alleging equitable estoppel sufficient to obviate the statute of frauds. Defendants' proposed amendment would have read:\\n\\\"In consideration and reliance on said oral lease, the Defendants planted crops and worked on said property and were to pay to the Plaintiff one-third (%) of the proceeds of the hay/grain crop taken from said property, and thereafter did so for a period of two years.\\\" (Amendments underlined.)\\nThe court sustained plaintiff's demurrer and denied defendants' motion to amend to conform to the proof. Defendants contend the trial court abused its discretion in refusing to permit them to amend. There was evidence that defendants had planted a crop of alfalfa, the probable life of which was at least four years.\\nDefendants' proposed amendment effectively alleged equitable estoppel sufficient to preclude plaintiff from asserting the defense of the statute of frauds. Equitable estoppel must be distinguished from the doctrine of part performance, which is cognizable only-in equity as a defense to an equitable cause of suit. Hearn v. May et al, 207 Or 514, 519, 298 P2d 177 (1956). Equitable estoppel, on the other hand, may be asserted in an action at law. It rests upon the principle that, where one has acted to his detriment solely in reliance on an oral agreement, an estoppel may be raised to defeat the defense of the statute of frauds. Stevens v. Good Samaritan Hosp., 264 Or 200, 204-05, 504 P2d 749 (1972); United Farm Agency v. McFarland, 243 Or 124, 130-31, 411 P2d 1017 (1966); Note, The Doctrine of Equitable Estoppel and the Statute of Frauds, 66 Mich L Rev 170, 174-76 (1967). Plaintiff asserts that defendants have not adequately pleaded estoppel in their proposed amended counterclaim because they have not alleged conduct \\\"unequivocally referable to the oral agreement.\\\" Plaintiff has misread the opinion in Stevens, however. Proof of conduct unequivocally referable to the oral agreement is necessary to establish part performance but it is not, as the Stevens opinion points out, a necessary element in estoppel. 264 Or at 206-07.\\nThe trial court may allow an amendment to conform to the proof under ORS 16.390 \\\"when the amendment does not substantially change the cause of action and when the evidence on which the amendment is based was received without objection.\\\" Eck v. Market Basket, 264 Or 400, 406, 505 P2d 1156 (1973); Cutsforth v. Kinzua Corp., 267 Or 423, 433-34, 517 P2d 640 (1973); Quirk v. Ross, 257 Or 80, 83, 476 P2d 559 (1970). Whether to allow or refuse such an amendment is addressed to the discretion of the trial court, which will be reversed only for an abuse of discretion. Eck v. Market Basket, supra at 407-08; Quirk v. Ross, supra at 83; Von Bergen v. Kuykendall, 240 Or 191, 193, 400 P2d 553 (1965). However, the policy of this court is that such amendments are to be liberally allowed. Quirk v. Ross, supra at 83; Morrill v. Rountree, 242 Or 320, 324-25, 408 P2d 932 (1965); Von Bergen v. Kuykendall, supra at 193. When an amendment is refused, the exercise of discretion is measured by the amount of prejudice that would result to the opposing party from amendment at such a late stage in the case. Morrill v. Rountree, supra at 325.\\nIn Quirk v. Ross, supra, it was stated that \\\"[w]here the party seeking the amendment has reasonable means of learning or has knowledge prior to trial of the circumstances which make it desirable for him to amend, a slight chance that the other party will be prejudiced will justify a refusal of the requested amendment 257 Or at 83-84. Defendants certainly cannot claim that they were unaware, prior to trial, of the circumstances making it desirable for them to amend. They knew it was an oral lease (they alleged it, after all). If they were not aware before trial, they were certainly put on notice when plaintiff filed her demurrer at the beginning of trial. Nevertheless, the language in Quirk should not be read to eliminate the requirement of prejudice to the opposing party.\\nNo objection was made to the introduction of evidence concerning the oral lease. The plaintiff admitted there was an oral lease but claimed it was from year to year. The terms of the lease were fully litigated by both sides. There was a letter in evidence from plaintiff to defendants in which plaintiff unequivocally admitted there was a lease for five years, though she attempted to qualify the admission at trial. There could be no possible surprise and, thus, prejudice to plaintiff because the claim of an oral lease for five years was alleged in defendants' original counterclaim. Because the matter had been completely tried, with no discernible prejudice to plaintiff, it is our opinion that the trial court abused its discretion in failing to allow the defendants to amend their counterclaim to conform to the proof.\\nAffirmed in part; reversed in part and remanded for trial.\"}"

or/2144087.json

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+"{\"id\": \"2144087\", \"name\": \"In re Complaint as to the Conduct of JAMES F. McCAFFREY, Accused\", \"name_abbreviation\": \"In re Complaint as to the Conduct of McCaffrey\", \"decision_date\": \"1976-05-13\", \"docket_number\": \"\", \"first_page\": \"23\", \"last_page\": \"28\", \"citations\": \"275 Or. 23\", \"volume\": \"275\", \"reporter\": \"Oregon Reports\", \"court\": \"Oregon Supreme Court\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-11T01:11:58.204957+00:00\", \"provenance\": \"CAP\", \"judges\": \"PER CURIAM.\", \"parties\": \"In re Complaint as to the Conduct of JAMES F. McCAFFREY, Accused.\", \"head_matter\": \"Submitted on brief March 20,\\nreprimanded May 13, 1976\\nIn re Complaint as to the Conduct of JAMES F. McCAFFREY, Accused.\\n549 P2d 666\\nSubmitted on brief of James F. McCaffrey pro se March 20, 1976.\\nNo appearance for Oregon State Bar.\\nPER CURIAM.\", \"word_count\": \"1298\", \"char_count\": \"7852\", \"text\": \"PER CURIAM.\\nThe charges against the accused lawyer were summarized in the memorandum opinion of the Trial Board:\\n\\\"The accused, JAMES F. McCAFFREY, has been charged with essentially three acts of professional misconduct, two of which arise out of interrelated transactions. The crux of each of the three charges is, first, a failure to preserve the confidences and secrets of a client in violation of Disciplinary Rule 4-101 of the Code of Professional Responsibility [Code]; second, communicating with a party known to be represented by an attorney without the consent of that attorney in violation of Disciplinary Rule 7-104 of the Code; and, third a failure to represent a client competently and zealously, in violation of Disciplinary Rules 6-101 and 7-101 of the Code.\\\"\\nWe find, as did the Trial Board and the Disciplinary Review Board, that the accused is not guilty of failing to represent his client competently and zealously.\\nThe first charge relating to a failure to preserve the confidences of a client arose out of the accused's representation of Mr. Stykel. In 1968-1969 the accused represented him in the prosecution of a personal injury claim. In 1969 and 1970 the accused incorporated two business ventures for Mr. Stykel. The accused was on the Board of Directors of one corporation and served as its registered agent. The accused defended one of the corporations in an action in which general and punitive damages were sought. The plaintiff took Mr. Stykel's deposition to inquire into his business and financial affairs. The accused represented the corporations in several other lawsuits and did other legal work for them. In 1970 the accused represented Mr. and Mrs. Stykel in a proceeding in which Mrs. Stykel adopted Mr. Stykel's children by a former marriage.\\nThe attorney-client relationship ended in February 1972 when the accused brought an action against his client for fees.\\nIn 1973 the accused represented Mrs. Stykel and filed a petition for dissolution of her marriage. Mr. Stykel's attorney wrote the accused that Mr. Stykel was of the opinion that the accused's representation of his wife constituted a conflict of interest because of the accused's knowledge of confidential information he had received from Mr. Stykel. Mr. Stykel also protested to the bar. The accused told Mrs. Stykel that in view of her husband's attitude she should get another lawyer. She did not want to change, so the accused had his partner do most of the work. The accused, however, continued with some participation.\\nThe disputes in the dissolution concerned support, the distribution of assets and assumption of liabilities. The parties settled their differences after trial had started. Both were of the opinion that the settlement was unfavorable to them.\\nMr. Stykel testified he had told the accused of some improprieties in his personal life and, because of information he gave the accused as his lawyer, the accused knew Mr. Stykel had \\\"tax problems.\\\" The \\\"tax problems\\\" apparently were that Mr. Stykel had not paid some taxes. The accused denied his client told him of any improprieties. He also testified he had \\\"suspicions\\\" his client had \\\"tax problems,\\\" but he did not know any details. He referred his client to an accountant to handle his client's tax problems.\\nThe Trial Board was of the opinion:\\n\\\"Whether or not the accused in fact knew, or had available to him for the looking in his various office files on James L. Stykel and his corporate businesses, any confidential information about Mr. Stykel not known to Mrs. Stykel is not the critical issue.\\nIt reasoned:\\n\\\" [T]he financial information about Mr. Stykel which the accused obtained or may have obtained could have proved relevant and advantageous to Mrs. Stykel.\\\"\\nThe Trial Board concluded the accused had violated the Code because his conduct created \\\"the appearance of impropriety.\\\"\\nWe also find the accused violated the Code because his representation of Mrs. Stykel created the appearance that he was using the confidences gained from his representation of Mr. Stykel to Mr. Stykel's disadvantage.\\nThe accused's representation of Mr. Stykel and Mr. Stykel's businesses caused the accused to become familiar with the financial affairs of his client. When an attorney with such information a year or so later undertakes to represent his former client's wife in a divorce suit against his former client, an appearance of a conflict of interest is necessarily created. It appears to the public as well as the former client that the attorney could be using information the attorney gained while representing his former client to the disadvantage of his former client. The appearance is obviated, of course, if the former client's consent is obtained.\\nWe quoted from Wise, Legal Ethics 273 (2d ed 1970), in In re Harry D. Boivin, 271 Or 419, 533 P2d 171 at 174:\\n\\\" ' If there is the slightest doubt as to whether or not the acceptance of professional employment will involve a conflict of interest between two clients or with a former client, or a conflict between the interests of any client and that of the attorney, or may require the use of information obtained through the service of another client, the employment should be refused.' \\\"\\nWith regard to the charge that the accused communicated directly with a party represented by an attorney, that act is admitted by the accused. His position is that he did so unknowingly.\\nMr. and Mrs. Castro obtained a divorce. The accused was not involved. Mr. Castro lived in California and she in Oregon. The accused was representing her in a dispute over visitation. The accused knew Mr. Castro had represented himself in the divorce in June 1972. He had personally visited the accused in his office in connection with the visitation dispute. The accused, however, knew Mr. Castro later retained an attorney, as in May 1973 he wrote Mrs. Castro's California attorney to that effect. In November 1973 he made a direct communication to Mr. Castro by writing him a letter. The accused testified he would never have done so intentionally and we believe that is the fact. The record is that the accused was careless in making the direct communication. That is the conclusion the Trial Board reached.\\nThe accused contends this court has held that isolated instances of negligence are not grounds for discipline. That is too broad a statement. In In re Robert Neil Gygi, 273 Or 443, 450, 541 P2d 1392 (1975), we held an attorney's negligence in preparing a corporate annual report was not sufficient to warrant disciplinary action. However, we contrasted In re Marvin G. Hollingsworth, 272 Or 319, 536 P2d 1244 (1975), in which we held that negligence in making court appearances and disbursing funds did warrant discipline.\\nA breach of the Code is a subject of disciplinary action if done negligently and if the breach is apt to cause the harm the Code sought to prevent. Rule 7-104(A)(1) prohibits communicating with a person who is represented by counsel. The purpose of the rule is to prevent a person from being deprived of the advice of retained counsel by bypassing retained counsel. It is immaterial whether the direct communication is an intentional or a negligent violation of the rule.\\nThe Trial Board recommended that a public reprimand be administered the accused. The Disciplinary Review Board made the same recommendation. We also find that to be appropriate. This opinion will act as a public reprimand to the accused for representing Mrs. Stykel and for communicating directly with Mr. Castro at a time when he was represented by an attorney.\"}"

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+"{\"id\": \"2151409\", \"name\": \"TERRY, Respondent, v. MULTNOMAH COUNTY, OREGON et al, Petitioners\", \"name_abbreviation\": \"Terry v. Multnomah County\", \"decision_date\": \"1977-07-12\", \"docket_number\": \"TC A76 03 02897, CA 6406, SC 25117\", \"first_page\": \"127\", \"last_page\": \"138\", \"citations\": \"279 Or. 127\", \"volume\": \"279\", \"reporter\": \"Oregon Reports\", \"court\": \"Oregon Supreme Court\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T17:48:39.130820+00:00\", \"provenance\": \"CAP\", \"judges\": \"TONGUE, J.\", \"parties\": \"TERRY, Respondent, v. MULTNOMAH COUNTY, OREGON et al, Petitioners.\", \"head_matter\": \"Argued May 6,\\nreversed July 12, 1977\\nTERRY, Respondent, v. MULTNOMAH COUNTY, OREGON et al, Petitioners.\\n(TC [ AXX XX XXXXX ], CA 6406, SC 25117)\\n566 P2d 878\\nMartin B. Vidgoff, Deputy County Counsel, Portland, argued the cause for petitioner Multnomah County. On the briefs with him were George M. Joseph, County Counsel, and Gary J. Zimmer, Deputy County Counsel, Portland.\\nLeslie M. Roberts, Portland, argued cause for petitioner Portland Adventist Hospital. On the briefs with her was Clifford B. Alterman, of Kell, Alterman & Runstein, Portland.\\nStan Terry, Portland, filed a brief in propia persona.\\nOrval Etter, Research attorney, Bureau of Governmental Research and Service, University of Oregon, Eugene, filed a brief Amicus Curiae, by invitation of the Oregon Supreme Court.\\nTONGUE, J.\", \"word_count\": \"3473\", \"char_count\": \"20755\", \"text\": \"TONGUE, J.\\nPlaintiff, as a taxpayer, brought this suit for a decree declaring the purchase by defendant Mult-nomah County of a golf course owned by defendant Portland Adventist Hospital to be void as in violation of the $5,000 debt limitation imposed by Art XI, \\u00a7 10, of the Oregon Constitution. After motions for summary judgment by both parties, the trial court entered a judgment and decree dismissing the complaint. That judgment and decree was reversed by the Court of Appeals. 27 Or App 15, 554 P2d 1017 (1976).\\nWe granted defendants' petitions for review because of our concern whether that court was correct in holding, among other things, that even though a county may have unappropriated funds in an amount sufficient to pay an obligation incurred by it, that obligation is nevertheless a \\\"debt\\\" within the meaning of Art XI, \\u00a7 10, unless an \\\"appropriation\\\" of sufficient funds has been made to pay that obligation.\\nThe case was submitted on motions for summary judgment by both plaintiff and by defendants. The facts are not in controversy. Those facts, as they appear from the affidavits submitted in support of such motions, are briefly as follows.\\nDefendant Portland Adventist Hospital purchased as the site for a prospective hospital 230 acres bf land in East Multnomah County known as the Glendoveer National Golf Course. The Hospital received a Certificate of Need for construction of the Hospital, which was also approved by the Multnomah County Planning Commission. That approval was then reversed by the Board of Commissioners of Multnomah County.\\nThe Hospital and County then entered into the contract which is the subject of this suit, under which the County agreed to purchase that property from the Hospital for $3,000,000, of which $2,400,000 was to be paid upon the execution of the contract and the County, as the buyer, assumed an outstanding Obligation owed by the Hospital for payment of $6001,000 as the balance owed by it under an existing contract for purchase of the property from third parties. That balance of $600,000, with interest at four per cent per annum, was payable in two equal installments on September 17,1975, and September 17,1976, but with no limitations or penalties on prepayment. !\\nAccording to uncontradicted affidavits, with supporting exhibits, submitted by the County in support of its motion for summary judgment, the $2,400,000 payable by the County upon execution of the contract came from two sources: $1,000,000 in funds which had been budgeted for that purpose in its 1974-75 fiscal year budget and $1,400,000 obtained by the County as an advance from the State of Oregon against future allocations from the State Highway Fund under ORS 366.525 to 366.540. That arrangement was held to be proper by the Court of Appeals (27 Or App 15, supra, at 18). j\\nWe agree with its decision on that issue. This leaves for consideration the validity of the contract provision under which the County undertook to pay the balance of $600,000 on terms previously described. With respect to that issue, it should be noted that it is also uncontroverted, as stated in affidavits and supporting exhibits submitted by the County in support of its motion for summary judgment, that as of the date of the contract in dispute the County had a total of $2,619,407 in unappropriated monies or contingency funds which (in addition to the $1,000,000 already appropriated) could have been applied by it in payment of the obligations arising under the contract, including the obligation to pay the $600,000 balance.\\nArticle XI, \\u00a7 10, of the Oregon Constitution, provides that:\\n\\\"No county shall create any debt or liabilities which shall singly or in the aggregate, with previous debts or liabilities, exceed the sum of $5,000; provided, however, counties may incur bonded indebtedness in excess of such $5,000 limitation to carry out purposes authorized by statute, such bonded indebtedness not to exceed limits fixed by statute.\\\"\\nThis court has said that such debt limitation provisions are \\\"for the benefit and protection of the taxpayer, by requiring the municipal authorities to conduct its affairs substantially within the current revenues.\\\" Brewster v. Deschutes County et al, 137 Or 100, 106, 1 P2d 607 (1931). More recently, we said of a similar debt limitation upon the Oregon legislature in Martin v. Oregon Building Authority, 276 Or 135, 141, 554 P2d 126 (1976), that:\\n\\\" [Ojur provision Vas adopted by the people as a protection against burdensome and excessive taxation' and that it was intended 'to prevent exposing the sources of public revenue to potential hazard.' Debt restrictions force the elected representatives of the people to operate the government within its means and remove the temptation to undertake projects on an enjoy-now, pay-later basis.\\\"\\nThe primary contention by defendants in support of these petitions for review is that if at the time an obligation is created by the County it has sufficient funds available to pay that obligation, there is no \\\"debt\\\" within the meaning of Art XI, \\u00a7 10.\\nAs we read the decision by the Court of Appeals, that court appears to hold that \\\"[t]he issue in Oregon is not whether the county is solvent\\\" (27 Or App at 19), but that this $600,000 obligation was a \\\"debt\\\" within the meaning of Art XI, \\u00a7 10, even though there were sufficient unappropriated funds to pay that obligation, because there had been no appropriation of such funds for the payment of that obligation. j\\n1. The obligation was not a \\\"debt\\\" within the meaning of the Oregon Constitution because there were funds available to pay that obligation. \\\\\\nAccording to 15 McQuillin, Municipal Corporations 343-44, \\u00a7 4120 (1970:\\n\\\"If at the time the obligation is created, there is money in the treasury sufficient to meet a liability and which can be applied thereto when due, no indebtedness is incurred. Thus, if when a city makes a contract, for a filtration plan for example, it has on hand funds available, that is, sufficient in amount to meet its obligation under the contract as they mature, obviously no indebtedness is thereby created. It is a cash transaction. But indebtedness is incurred, at least where the expense is other than an ordinary and current one, where the cash in the treasury is sufficient only in part. And the money must be in the treasury ready to pay when the debt comes into existence and not merely when it becomes due. .\\\" ;\\nIn Bowers, Limitations on Municipal Indebtedness, 5 Vand L Rev 37, 43 (1951), in discussing the term \\\"indebtedness\\\" for the purpose of such debt limitation provisions, it is stated that: ,\\n\\\" The term is quite uniformly held to mean 'net indebtedness' today.\\\"\\nThe apparent rationale for such a \\\"net indebtedness\\\" rule is that the purpose of such a debt limitation provision is to protect the taxpayer by requiring cities and counties to conduct their operations substantially within current revenues. Thus, it is reasonable to infer that the framers of these constitutional provisions intended to place limitations only upon the actual indebtedness of municipal or county governments for which additional taxes must be levied in the future, and not upon the apparent indebtedness for which funds are presently available. Cf. Williamson v. Al-drich, 21 SD 13, 108 NW 1063 (1906), as quoted with approval in 2 Antieau, Municipal Corporation Law 15-92, \\u00a7 15.45 (1973).\\nIt is contended by the County that prior decisions by this court are in accord with the rule as stated in 15 McQuillin, supra, citing Butler v. City of Ashland et al, 113 Or 174, 182-83, 232 P 655 (1925); Smith v. Jefferson, 75 Or 179, 194-95, 146 P 809 (1915); and Brix v. Clatsop County, 46 Or 223, 231, 80 P 650 (1905).\\nIt appears, however, from a reading of these and other decisions by this court, that while such decisions are in accord with such a rule to the extent that they are consistent with that rule, and have even quoted the rule as stated in McQuillin, supra, by way of dictum, this court has not yet expressly adopted that rule as one which has controlled its decision in any previous case.\\nIt is not entirely clear whether the \\\"available funds\\\" rule stated in McQuillin, supra, as construed by the County, is the same as the \\\"net indebtedness\\\" rule stated by Bowers, supra. According to a brief filed as amicus curiae by the Bureau of Governmental Research, however, the proper rule is one of \\\"net debt\\\" and both the rule as stated in McQuillin and the prior decisions by this court are consistent with that rule. We agree that the proper rule for the purpose of determining whether the obligation is a \\\"debt\\\" within the meaning of the $5,000 debt limitation imposed by Art XI, \\u00a7 10, of the Oregon Constitution, is one of \\\"net indebtedness.\\\" That is, if a county's total indebtedness, including the obligation which is being challenged, does not exceed the assets which could be applied to discharge that indebtedness, there is no \\\"debt\\\" within the meaning of the Constitution.\\nWe also believe that the application of that rule is controlling in the disposition of this case. As previously stated, this case was submitted for decision by motions for summary judgment by both plaintiff and defendants. In the affidavits attached to defendants' motions, it is stated that at the time of the execution of the contract in question, the County \\\"had available at least $2,619,407 in contingency funds or unappropriated monies which could have been applied toward the payment of the purchase price of Glendoveer National Golf Course.\\\" That amount was far in excess of the contract balance of $600,000. It also appears from exhibits attached to that affidavit that the County had \\\"net assets\\\" in excess of that amount. Plaintiff has made no contention to the contrary and has filed no affidavit contradicting defendants' affidavit. On the contrary, plaintiff's motion for summary judgment expressly stated that \\\"there is no genuine issue as to any material fact.\\\"\\nIt follows, in our opinion, that the trial court did not err in entering its judgment and decree granting defendants' motions for summary judgment and dismissing plaintiff's complaint. For the same reasons it also follows, in our opinion, that the Court of Appeals was in error in reversing that judgment and decree and, in particular, in its holding that \\\"[t]he issue in Oregon is not whether the county is solvent, .\\\" 27 Or App at 19.\\n2. No \\\"appropriation\\\" of funds for payment of the balance of this contract was required to satisfy the debt limitation requirements.\\nAs previously stated, the apparent basis for the decision by the Court of Appeals is that even though a county may at the time of the execution of such a contract have sufficient funds to pay the entire contract balance, unless there is also an appropriation of such funds for payment of that obligation, it is a \\\"debt\\\" within the meaning of Art XI, \\u00a7 10, of the Oregon Constitution, citing Salem Water Co. v. City of Salem, 5 Or 29, 35 (1873), and Multnomah County v. First Nat. Bank, 151 Or 342, 50 P2d 129 (1935).\\nIt is contended by defendant County, however, that\\n\\\"Coos County v. Oddy, 156 Or 546, 68 P2d 1064 (1937), and other authorities are to the contrary, and hold that the test of whether an obligation which comes due in a year after it is contracted violates Article XI, Section 10 is not whether there has been an appropriation for that obligation, but whether the contracting county has adequate available revenue on hand to meet the obligation at the time of incurring it.\\\" I\\nWe agree with that contention. Although Coos County v. Oddy, 156 Or 546, 68 P2d 1064 (1937), does not clearly hold that no appropriation is required, the cases and authorities previously cited and discussed hold that the test is whether there are sufficient funds available for payment of the obligation, not whether such funds have been appropriated for payment, of the obligation. Although the existence of money in the treasury unappropriated to other purposes may be required, a formal appropriation is not required. See 15 McQuillin, supra, 102, \\u00a7 39.34.\\nFurthermore, we do not read either Salem Water Co. v. City of Salem, supra, or Multnomah County v. First Nat. Bank, supra (cited by the Court of Appeals), as adopting a rule requiring the appropriation of such funds.\\nRelated to the question of whether funds must be \\\"appropriated\\\" is a further contention by the County that in this case this court should overrule its previous decision in Brewster v. Deschutes County et al, 137 Or 100, 1 P2d 607 (1931), in which it was held (at 106) that:\\n\\\" [T|n determining the amount of the debt or liability the aggregate sum and not the particular instalment is the decisive factor.\\\" (Emphasis added)\\nComity says that such a rule \\\"artificially escalates the time obligations vest and artificially inflates the amount of debt which is deemed to have vested\\\" and, in addition, that such a rule is contrary to the weight of authority,\\\" citing 15 McQuillin, supra, at 392-93, \\u00a7 41.38.\\nIt is recognized by McQuillin, however, that there is a split of authority on this question. In Brewster this court (at 106-07) expressly rejected substantially the same contention as now made by the County, after reviewing its prior decisions on this subject. It may also be said of the \\\"aggregate sum\\\" rule as stated in Brewster that it is consistent with the purpose of Art XI, \\u00a7 10, to provide protection to taxpayers by requiring a county to \\\"conduct its affairs substantially within current revenues.\\\" It may also be contended that the limitation imposed by such a rule provides substantially as much protection to the taxpayer as under a rule requiring \\\"appropriation\\\" of funds, as would have been the rule under the decision by the Court of Appeals.\\nIn any event, we do not consider this to be an appropriate case in which to reconsider the \\\"aggregate sum\\\" rule, as previously adopted in Brewster, because in this case (according to the uncontradicted affidavits submitted in support of the motion of defendant County for a summary judgment), there were suffi cient funds on hand for payment of the total \\\"aggregate\\\" contract balance of $600,000.\\nFinally, at the time of oral argument the question was raised whether the same \\\"unappropriated\\u00a1funds\\\" could be used by a county as a basis for sustaining the validity of multiple obligations, each in an amount less than the amount of such unappropriated funds, but which, when combined, would exceed the amount of such funds.\\nWith respect to that suggestion we consider it sufficient, for the purposes of this case, to point out that no contention is made by this plaintiff that such a state of facts existed at the time of the execution of this contract. Again, as previously stated this case was submitted on motions by both plaintiff and defendants for summary judgment based solely upon facts as set forth in the affidavits filed in support of such motions. Furthermore, such a suggested state of hypothetical facts would not satisfy the requirements of the \\\"net indebtedness\\\" rule, as adopted in this case.\\nFor all of these reasons, the decision by the Court of Appeals is reversed. I\\nIn granting defendants' petitions for review this court requested that argument be submitted on the following two questions:\\n\\\"1. Is a county's contractual obligation to make cash payments in future fiscal years a 'debt or liability' within the meaning of Oregon Constitution Art. XI, sec. 10, if, at the time the county incurs the obligation, it has on hand uncommitted funds in excess of the total contract obligation?\\n\\\"2. If the county's possession of such uncommitted funds does not, of itself, prevent the contractual obligation from constituting a 'debt or liability' within the meaning of the constitutional provision, what is the appropriate budgetary action for the county to take to avoid the constitutional prohibition?\\n\\\"a. Must there be a formal appropriation of funds to cover the entire contractual obligation at the time it is incurred?\\n\\\"b. Do the statutes governing local government budgetary procedures permit an effective appropriation of funds in one fiscal year to cover cash payments to be made in future fiscal years?\\n\\\"c. If an appropriation is not necessary under the Constitution, or would not be effective under the statutes, what other methods of earmarking or making provision for funds to cover future cash payments are available to Oregon counties?\\\"\\nArgument was also requested on two additional questions which need not be considered because of the basis on which we decide this case.\\nSimilarly, as stated in 64 CJS, Municipal Corporations 363, \\u00a7 1849 (1950): !\\n\\\"While a few decisions hold that a limitation of municipal indebtedness refers to outstanding debts and not net indebtedness, it has generally been held that in computing the existing indebtedness of a municipal corporation a deduction may be made from gross indebtedness of municipal assets applicable to the payment of such indebtedness.\\\"\\nIn Butler v. City of Ashland et al, 113 Or 174, 182-83, 232 P 655 (1925), this court, in quoting from 5 McQuillin, Municipal Corporations 4722, \\u00a7 2227 (1913), included the following quotations, among others:\\n\\\"If there is money in the treasury sufficient to meet a liability, and which can be applied thereto when due, at the time the liability is created, no indebtedness is incurred.\\\"\\nIn that case, however, the controlling issue was whether an obligation was payable out of a \\\"special fund.\\\" Thus, the above quotation was dictum. In Smith v. Jefferson, 75 Or 179, 194-95, 146 P 809 (1915), it would appear that the rationale of the McQuillin rule is implicit as the basis for the decision by this court in that case. Such a rule is not expressly stated, however, and neither McQuillin nor any other legal authorities are cited in support of that decision.\\nIn Brix v. Clatsop County, 46 Or 223, 231, 80 P 650 (1905), this court held invalid a contract for the construction of a courthouse and its recognition of such a rule was also dictum.\\nWe have also examined other Oregon cases cited in the various briefs and find them to be not in point.\\nSee also 15 McQuillin, Municipal Corporations 395-97, \\u00a7 41.39 (1970).\\nORS 18.105(4) provides:\\n\\\" when a motion for summary judgment is made and supported as provided in this section, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this section, must set forth specific facts showing that there is a genuine issue as to any material fact for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.\\\"\\nSalem Water Co. v. City of Salem, 5 Or 29, 35 (1873), is quoted as holding that:\\n\\u00ab [jj{ expenses are incurred by authority of the legislative department for some specified object, without any provision being made for the payment of such expenses as they accrue, they thereby create and become a debt against the State, within the meaning of the prohibitory clause. \\\" j\\nIn Salem Water Co. v. City of Salem, supra n. 6, at 35, this court stated that rule only as \\\"the theory adopted\\\" in two California cases and went on to cite Coulson v. The City of Portland, 1 Deady 481, as holding that:\\n\\\" The fact that the ordinance appropriates money to pay these coupons, as they fall due, makes no difference. There is no magic in the legislative formula, 'There is hereby appropriated.' \\\"\\nThe court went on (at 36) to say that it did not \\\"undertake to decide\\\" the effect of an ordinance provision for appropriation of funds.\\nCf. Brix v. Clatsop County, 46 Or 223, 230, 80 P 650 (1905).\\nBrewster v. Deschutes County et al, 137 Or 100, 106, 1 P2d 607 (1931). More recently, in Martin v. Oregon Building Authority, 276 Or 135, 554 P2d 126 (1976), this court again referred, with apparent approval, to the \\\"aggregate sum\\\" rule as stated in Brewster.\"}"

or/2152766.json

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+"{\"id\": \"2152766\", \"name\": \"KILANDER, Respondent, v. BLICKLE CO., Appellant\", \"name_abbreviation\": \"Kilander v. Blickle Co.\", \"decision_date\": \"1977-11-22\", \"docket_number\": \"TC 419-930, SC 24590\", \"first_page\": \"425\", \"last_page\": \"430\", \"citations\": \"280 Or. 425\", \"volume\": \"280\", \"reporter\": \"Oregon Reports\", \"court\": \"Oregon Supreme Court\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T20:35:59.496411+00:00\", \"provenance\": \"CAP\", \"judges\": \"LINDE, J.\", \"parties\": \"KILANDER, Respondent, v. BLICKLE CO., Appellant.\", \"head_matter\": \"Argued June 7,\\nreversed and remanded November 22, 1977\\nKILANDER, Respondent, v. BLICKLE CO., Appellant.\\n(TC 419-930, SC 24590)\\n571 P2d 503\\nChristie H. Wiater, Portland, argued the cause for appellant. With her on the briefs were Miller, Anderson, Nash, Yerke & Wiener and John R. Bakkensen.\\nFrank M. Ierulli, Portland, argued the cause and filed a brief for respondent.\\nLINDE, J.\", \"word_count\": \"1158\", \"char_count\": \"6994\", \"text\": \"LINDE, J.\\nPlaintiff sued for a sales commission of $10,750 claimed to be owed him over and above $4,250 previously paid by defendant. Defendant pleaded an affirmative defense of accord and satisfaction by the payment of the $4,250, this being the commission defendant considered to be due. The trial court withdrew this defense from the jury. The jury returned a verdict for the $10,750 claimed by plaintiff, judgment was entered, and defendant appeals.\\nThe case presents the single question whether a creditor's acceptance of a payment tendered in full satisfaction of a disputed or unliquidated claim can constitute an accord and satisfaction when the amount tendered is no greater than the debtor admits he owes. We hold that it can.\\nThe dispute arose from a transaction in which defendant's president, Richard Blickle, orally agreed that defendant would pay plaintiff a commission if plaintiff obtained a buyer for defendant's dredge. According to defendant's version of the negotiations, the commission was to be either five per cent of the sale price, if defendant bore certain risks and expenses of sale, or any sum in excess of $65,000 net to defendant if plaintiff arranged a cash sale. Plaintiff denied that the second alternative was conditional on his finding a cash buyer. He obtained a purchaser who bought the dredge for $85,000 on an installment contract and claimed a commission of $20,000 less expenses incident to the sale.\\nDefendant paid plaintiff $4,250, or five per cent of the sale price, by two checks for $2,125. Plaintiff cashed these checks. Defendant presented evidence that each check, when delivered to plaintiff, was accompanied by a voucher stating that the check represented one-half of the total commission, the second voucher describing the second check as the \\\"final\\\" half of the total of $4,250. Defendant denied having seen either voucher. The evidence sufficed to\\nmake a jury issue whether there was a bona fide dispute about the amount of commission due, at the time the checks were given to plaintiff, and also whether the plaintiff received the vouchers and cashed the second check with notice that it was tendered in full satisfaction of his claim. Accordingly, the defense should have gone to the jury unless it falls outside the general rule of accord and satisfaction recognized in Schumacher v. Moffitt, 71 Or 79, 142 P 353 (1914) and Pederson v. Portland, 144 Or 437, 24 P2d 1031 (1933) and reaffirmed most recently in Edgley v. Jackson, 276 Or 213, 554 P2d 476 (1976), that acceptance of a check tendered in full payment will discharge an unliquidated claim disputed in good faith.\\nThe premise of an accord and satisfaction is contractual. See, e.g., Harding v. Bell, 265 Or 202, 209, 508 P2d 216 (1973); Capps v. Georgia-Pacific, 253 Or 248, 453 P2d 935 (1969), and cases cited. The only argument why a creditor's acceptance of a tendered \\\"final payment\\\" in the amount the debtor admits he owes might not be an accord and satisfaction is that it lacks consideration. That view has been taken in some jurisdictions. See, e.g., Buel v. Kansas City Life Ins. Co., 32 NM 34, 250 P 635, 52 ALR 367 (1926), and an annotation in 112 ALR 1219 (1938). Most authorities state that where only one debt or claim is involved, present payment of an amount admittedly due will support the consensual discharge of the entire claim. 1 Williston, Contracts (3d ed Jaeger 1957) 528-531, \\u00a7129; 6 Corbin, Contracts (1962) 163-166, \\u00a71289, and 169-170, \\u00a71290. That is also the position taken by the Restatement. See 2 Restatement, Contracts 792, \\u00a7420, Comment a, Illustration 2; Restatement of Contracts 2d 162-163, \\u00a776B, Comment c and Illustration 4 (Tent. Draft Nos. 1-7,1973). This we think is the better view. It would be too technical a use of the doctrine of consideration to release a well-counseled debtor who tenders a nominal amount beyond his admitted debt but to trap one less sophisticated who is induced to pay the undisputed amount in return for his creditor's illusory promise to forgive the rest.\\nThe creditor who confronts the unpalatable choice between pressing a disputed claim or abandoning it in return for present payment of an undisputed amount may not be helpless in the face of what one text calls \\\"an exquisite form of commercial torture.\\\" White and Summers, Uniform Commercial Code (1972) 452, \\u00a713-21. In a transaction to which ORS 71.2070 applies, he may well have the option under ORS 71.2070 to collect the tendered \\\"final\\\" payment \\\"under protest,\\\" or \\\"without prejudice,\\\" or with some other explicit reservation of his rights to the remaining claim \\u2014at least unless the debtor has, in turn, expressly demanded a waiver of that option. See id. at 453-454 and note 184; Calamari and Perillo, Contracts (1970) \\u00a765, 94. See also Scholl v. Tallman, 247 NW2d 490 (SD 1976). If so, this UCC remedy is further reason to leave the settlement of disputed arm's-length transactions to the parties' dealings with tendered payments; but we do not decide this question on the present facts. In any event, when a debtor tenders payment upon condition that it is accepted as discharging a disputed or unliquidated debt, and the creditor accepts the payment upon this condition, the debtor is entitled to regard the matter as settled.\\nIn the present case, there is disputed evidence whether this is what occurred. The jury found, in response to a special interrogatory, that the initial agreement was as claimed by plaintiff, but they were prevented from considering defendant's contention that plaintiff knowingly accepted defendant's $4,250 as a full settlement of his commission. Perhaps defendant could not convince the jury of that, but he was entitled to try. Accordingly, the case must be remanded for a new trial.\\nReversed and remanded for a new trial.\\nARV v. AMFAC Merchandising Corp., 273 Or 558, 542 P2d 898 (1975) cited by plaintiff, is not to the contrary. It presented the contrary situation\\u2014full payment by the debtor of an invalid claim pressed by the creditor\\u2014and the court found the payment not to be a new agreement on a performance different from that claimed to be due. In the present case, the jury could have found such an agreement from the vouchers accompanying defendant's checks and plaintiffs cashing the checks with knowledge of the vouchers.\\nORS 71.2070:\\nA party who with explicit reservation of rights performs or promises performance or assents to performance in a manner demanded or offered by the other party does not thereby prejudice the rights reserved. Such words as \\\"without prejudice,\\\" \\\"under protest\\\" or the like are sufficient.\"}"

or/2154439.json

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+"{\"id\": \"2154439\", \"name\": \"ERICKSON, Petitioner, v. MOTOR VEHICLES DIVISION, Respondent\", \"name_abbreviation\": \"Erickson v. Motor Vehicles Division\", \"decision_date\": \"1977-08-17\", \"docket_number\": \"CA 8070\", \"first_page\": \"559\", \"last_page\": \"562\", \"citations\": \"30 Or. App. 559\", \"volume\": \"30\", \"reporter\": \"Oregon Reports, Court of Appeals\", \"court\": \"Oregon Court of Appeals\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T23:13:24.899802+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Schwab, Chief Judge, and Tanzer and Johnson, Judges.\", \"parties\": \"ERICKSON, Petitioner, v. MOTOR VEHICLES DIVISION, Respondent.\", \"head_matter\": \"Argued July 18,\\naffirmed August 17,\\nreconsideration denied September 14,\\npetition for review denied November 15, 1977\\nERICKSON, Petitioner, v. MOTOR VEHICLES DIVISION, Respondent.\\n(CA 8070)\\n567 P2d 590\\nRonald L. Gould, Coos Bay, argued the cause for petitioner. With him on the brief was McNutt, Gant & Ormsbee, Coos Bay.\\nDonald L. Paillette, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were James A. Redden, Attorney General, and W. Michael Gillette, Solicitor General, Salem.\\nBefore Schwab, Chief Judge, and Tanzer and Johnson, Judges.\\nTANZER, J.\", \"word_count\": \"612\", \"char_count\": \"3811\", \"text\": \"TANZER, J.\\nThis is an appeal from an order of the Motor Vehicles Division of the Department of Transportation suspending petitioner's driving privilege for a three-year period.\\nPetitioner was convicted on October 22, 1976 of having driven his motor vehicle on May 6,1976 with a blood-alcohol content in excess of .15 percent. The conviction was petitioner's first such conviction within five years, but his third within ten years.\\nThe suspension of his license was pursuant to ORS 482.430(3) and (4). That statute was amended as part of the revision of Oregon's Traffic Code by Oregon Laws 1975, ch 451, \\u00a7 144, the effective date of which was July 1,1976, i.e., between the dates of petitioner's offense and his conviction. Prior to the amendment, the Division was directed to suspend operators' licenses where there had been similar convictions within a prior ten-year period. Following amendment, the Division was directed to suspend licenses for convictions occurring within a prior five-year period.\\nPetitioner contends that the authority of the Division is controlled by the statute as it existed on the date of the conviction rather than the date of the offense because the Division's authority to act is triggered \\\"upon receiving a record of the second or subsequent conviction.\\\" Such an interpretation, however, would be contrary to the intent of the Traffic Code Revision.\\nThe amendment of ORS 482.430 was only one part of a comprehensive change of the criminal, civil and administrative sanctions utilized in a new legislative strategy to deter dangerous driving. ORS 487.065(1) and (2) controls the effective date of all such sanctions. It provides clearly to the contrary:\\n\\\"(1) Sections 2 to 169 of chapter 451, Oregon Laws 1975, shall govern the construction of and punishment for any vehicle code offense defined in chapter 451, Oregon Laws 1975, and committed after June 27, 1975, the construction and application of any defense to a prosecution for such an offense and any administrative proceedings authorized or affected by chapter 451, Oregon Laws 1975.\\n\\\"(2) Sections 2 to 169 of chapter 451, Oregon Laws 1975, shall not apply to or govern the construction of or punishment for any vehicle code offense committed before June 27,1975, or the construction and application of any defense to a prosecution for such an offense.\\\"\\nTherefore, we hold that ORS 482.430 applies to all convictions based on offenses which occurred prior to July 1, 1976. The order of suspension is upheld.\\nAffirmed.\\nOBS 482.430(3) and (4) provides as follows:\\n\\\"(3) The division forthwith shall suspend any person's permit or license to operate motor vehicles upon receiving a record of the second or subsequent conviction within a five-year period of such person for driving while under the influence of intoxicants.\\n\\\"(4) The period of suspension under subsection^ (2) and (3) of this section shall be:\\n\\\"(a) First conviction within a five-year period, 90 days.\\n\\\"(b) Second conviction within a five-year period, one year.\\n\\\"(c) Third or subsequent conviction within a five-year period, three years.\\\"\\nThe parties agree, correctly, that the reference to June 27,1975 is an error in codification. The date should be July 1, 1976.\"}"

or/2159844.json

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+"{\"id\": \"2159844\", \"name\": \"COMFORT, et ux, Respondents, v. STADELMAN FRUIT, INC., Appellants\", \"name_abbreviation\": \"Comfort v. Stadelman Fruit, Inc.\", \"decision_date\": \"1979-03-20\", \"docket_number\": \"TC 10,864, SC 25373\", \"first_page\": \"525\", \"last_page\": \"539\", \"citations\": \"285 Or. 525\", \"volume\": \"285\", \"reporter\": \"Oregon Reports\", \"court\": \"Oregon Supreme Court\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-11T02:12:33.045171+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Holman, Presiding Justice, and Howell, Lent and Linde, Justices.\", \"parties\": \"COMFORT, et ux, Respondents, v. STADELMAN FRUIT, INC., Appellants.\", \"head_matter\": \"Argued July 13, 1978,\\nreversed March 20, 1979\\nCOMFORT, et ux, Respondents, v. STADELMAN FRUIT, INC., Appellants.\\n(TC 10,864, SC 25373)\\n592 P2d 213\\nW. Eugene Hallman, of Mautz, Hallman and Rees, Pendleton, argued the cause and filed briefs for appellants.\\nMilo Pope, Milton-Freewater, argued the cause and filed the brief for respondent. With him on the brief was Storie & Gallaher, Pendleton.\\nBefore Holman, Presiding Justice, and Howell, Lent and Linde, Justices.\\nLENT, J.\", \"word_count\": \"4531\", \"char_count\": \"26220\", \"text\": \"LENT, J.\\nPlaintiffs obtained a $15,500 jury verdict for property damage and lost rent for injury to their trailer court resulting from a fire which originated at defendants' fruit processing plant in Milton-Freewater on June 3, 1975. Both the company Stadelman Fruit, Inc., and the plant manager, Charles Robertson, were charged as defendants. They assert on appeal that their motion for a directed verdict on the question of liability should have been granted by the trial court. We agree and reverse.\\nPlaintiffs alleged that the defendants were negligent in one or more of the following particulars:\\n\\\"(1) In piling the 'tote' boxes so close to the common property line of Plaintiffs and Defendant, Stadelman Fruit, Inc., when the Defendants knew, or in the exercise of reasonable care, should have known, of the danger from fire;\\n\\\"(2) In piling the 'tote' boxes without fire breaks between the piles and without sufficient distance from the fence to permit fire equipment to circle around to fight fire, if such should occur, when the Defendants knew, or in the exercise of reasonable care should have known, of the danger from fire;\\n\\\"(3) In piling the 'tote' boxes adjacent to the propane tank, which, when subjected to intense heat, ruptured and increased the heat which handicapped firemen in fighting the blaze, when the Defendants knew, or in the exercise of reasonable care should have known, of the danger from fire;\\n\\\"(4) In permitting inflammable debris, consisting of paper, cardboard, broken pallets, pieces of wood and weeds to accumulate upon the premises, which allowed the fire to spread, when the Defendants knew, or in the exercise of reasonable care should have known, of the danger from fire;\\n\\\"(5) In failing to have a night watchman on the premises to patrol for fires, if any there be, when the Defendants knew, or in the exercise of reasonable care should have known, of the danger from fire;\\n\\\"(6) In failing to install and maintain a sprinkler system on the 'tote' boxes, prior to the fire, to reduce the spread of fire if one should occur, when the Defendants knew, or in the exercise of reasonable care should have known, of the danger from fire;\\\"\\nPlaintiffs contended that they suffered damages as a direct and natural consequence of said negligence.\\nAt the close of all the evidence defendants made the following motion to the trial judge:\\n\\\"We would also renew our Motion, except we would make it a Motion for Directed Verdict as to both Defendants on the basis of liability and based on the previous arguments that I have made to The Court.\\\"\\nIn moving earlier for a judgment of involuntary nonsuit, defendant argued in part:\\n\\\" [T]here is a lack of any evidence that we have what the Supreme Court has ruled is necessary, a condition which is either a nuisance or one which is a highly combustible or dangerous situation.\\n\\u00abif: ?}c\\n\\\"In this case this is an industrial zone the evidence shows, the property is being put to a lawful purpose. There is no evidence of any danger of fire in this case. There is no mixture which would be or is combustible by itself. The tote boxes, there is no electricity around them or machinery by them. There is no evidence on that. And we feel very strongly that this is not a case where there is any proof that a reasonable person can find that this was a fire situation or a condition of premises which had a combustible or inflammable mixture which they should have taken care of.\\n\\n\\\"The question is whether a reasonably prudent person would have some knowledge of some dangerous condition or nuisance on the premises. And I think the Hess [sic] case quite clearly sets that forth and clearly does not stand for the proposition that a person must keep his premises so as to avoid a fire if it starts. They must prevent conditions which reasonably could be anticipated as occuring and act as a reasonably prudent person and they are not responsible for a fire that spreads through no fault of their own should a reasonable person not anticipate it.\\\"\\nIn reviewing the evidence we consider it, and all reasonable inferences therefrom, in the light most favorable to the plaintiff. Shepler v. Weyerhaeuser Company, 279 Or 477, 484, 569 P2d 1040 (1977), cert den 98 S Ct 903 (1978). Defendant Stadelman Fruit, Inc., maintains a fruit processing plant in MiltonFreewater, on property zoned heavy industrial. The main building of the plant was two stories and was a combination of wood, metal and cement. There was an apple processing area on the ground floor and a loading dock at the ground floor level on the east side of the building.\\nTo the east of the main building, and separated by a 25-foot paved strip kept clear of materials, was a large stack of \\\"tote boxes,\\\" each box 47 inches by 47 inches by 28 inches for apples and prunes and 47 inches by 47 inches by 16 inches for cherries. The tote boxes were stacked between 20 and 30 feet high and the pile was approximately 200 feet in length from south to north and 30 to 40 feet in width. The pile was on the property line between the Stadelman plant and the \\\"Little River Mobile Home Court,\\\" also on property zoned industrial. In some places the boxes were leaning against a fence between the properties. There had been problems between Stadelman and the plaintiffs with regard to the tote boxes damaging the fence. One week before the fire the owner of the court, Mr. Comfort, discussed the problem with the plant manager, Mr. Robertson. Mr. Comfort testified that he mentioned the fire hazard because of the condition of the area as well as the problem of the fence being shoved over and boxes falling over the fence. There were other stacks of boxes elsewhere on the premises.\\nAs of the day before the fire the stack was described as irregular, with \\\"some rows shorter than others, some cracks in between them, narrow enough to walk into but not all the way through, some clutter of windblown stuff,\\\" including \\\"some boards, weeds and paper.\\\" Windstorms caused some leaves and paper to blow into the Stadelman area from other parts of town. Though the plant had men assigned to clean up the debris, the area was generally untidy at that time of year because of frequent windstorms. Most of the debris collected in an area on the north end of the tote bin and pallet stack. Also at the north end of the stack, approximately 10 feet away from the stack, was a propane tank used for fueling the lift trucks at the plant. There was pavement under the boxes except for six inches next to the property line with the trailer court to the east, and that unpaved area was \\\"full of weeds.\\\"\\nOn the day of the fire some maintenance and box construction work was done at the main building. The apple season had concluded in April and the plant had been shut down approximately two months before the fire. At that time no watchman was employed by Stadelman at the plant and there was also no type of sprinkling system in the tote box area.\\nAt approximately 8:30 on the evening of June 3, 1975, a passerby noticed smoke coming from the apple processing area on the ground floor of the main building of the Stadelman plant. At that time there was no smoke or fire in the tote bins. The cause of the fire is not at issue in this case. In their complaint plaintiffs alleged that the fire was ignited \\\"in a manner which is to the Plaintiffs unknown.\\\" Both sides made it clear to this court in oral argument that the issue of this case was defendants' negligence solely with regard to the \\\"spread\\\" of the fire.\\nIt was not long after the first sighting that the building was engulfed in flames. When Mr. Comfort first discovered the fire, just after 8:30, he ran over to the plant and saw that the fire had blown over to a box at the top of the northwest comer of the stack. From there it spread on down and over the pile. The wind that night was blowing in a northeasterly direction, and Mr. Comfort estimated the speed to be 10 to 15 miles per hour. Mr. Comfort also testified that 30 to 45 minutes passed from the time that he discovered the fire until the mobile homes were on fire. The trailers began catching fire from north to south. The supervisor of the Investigations Division of the State Fire Marshal's office was asked whether he believed the mobile homes would have burned had there not been any wind at all, and he responded, \\\"When the major pile of tote boxes became involved, I think the mobile homes would have burned regardless of the wind, although the wind was certainly a factor.\\\" Around 40 men and six trucks fought the fire which was finally extinguished after 18 hours.\\nWe believe it would be helpful to review previous decisions of this court which concern the spread of fire.\\nIn the case of Aun\\u00e9 v. Oregon Trunk Railway, 151 Or 622, 51 P2d 633 (1935), the plaintiff contended that the defendant railway company was negligent in leaving some empty box cars unlocked and without a watchman and in thus allowing \\\"hobos\\\" to enter the cars and start a fire therein which spread to plaintiff's buildings. In asserting this negligence plaintiff contended that leaving the cars unlocked and unguarded and allowing the hobos to enter them created a nuisance and fire hazard to plaintiff's property. The defendants demurred to the complaint for failure to state a cause of action and the trial court sustained the demurrer. This court affirmed for two reasons, the first being that there was no allegation in the complaint contending that any violation of plaintiffs rights or any deviation from standard railroad practice occured as a result of parking the cars without locked doors or guard. The second reason was that even if defendant's acts were negligent, they were too remote and not the proximate cause of the injury. The court determined that the burning of plaintiffs buildings by hobos who had entered the box cars was not a natural and probable consequence of leaving the cars where they were and unlocked and was not a result which should or could have been foreseen by a person of ordinary care. Another factor considered by the court was the notion of the intervention of a culpable agency (between the defendant's negligence and the loss) without which the injury would not have happened.\\nAnother significant case in this area is Ameil v. Schnitzer, 173 Or 179,144 P2d 707 (1944). In that case plaintiff obtained a judgment against defendants for negligently maintaining their premises so that a fire started thereon and spread to other properties. Defendants had been dismantling a mill on the premises and at the time of the fire there were several large disorderly piles of debris and a large pile of oil-soaked sawdust. All of the firefighting equipment had been removed and no watchman was assigned to the property. One month before the fire a field inspector of the State Forester had found the property to be a \\\"fire hazard\\\" and advised the defendants to get a watchman and fire protection. The district fire warden also considered it a hazard and offered to help clean it up. Defendants did not follow these suggestions. The jury determined that the site did constitute a public nuisance, and the court supported that finding by noting legislation against such a fire hazard and for fire protection on timber lands. Defendants contended that they should not be held liable because they did not start the fire and the itinerant who did was an intervening cause. The court determined that it was not necessary for the defendants to start the fire in order to be held accountable. It sufficed that they maintained their property as a public nuisance and that the fire \\\"originated in the accumulated tinder.\\\" 173 Or at 199.\\nIn the case of Pac. N W Bell v. Century Home, 267 Or 46, 514 P2d 874 (1973), plaintiff charged defendant with violating a City of Eugene Fire Code provision concerning \\\"handling readily combustible materials.\\\" Such materials were to be removed from buildings at the close of each day and stored in suitable metal containers. In that case defendant put sawdust containing linseed oil, refuse and wood trimmings into a wooden trash box in its building. The fire started in the box, spread directly to a dock between defendant's building and the building containing plaintiff's property. Two experts testified that the materials in the box were \\\"highly combustible.\\\" Defendant argued that it was found to be negligent solely because it violated the fire code and that it was necessary for the trier of fact to also find that the defendant did not conduct himself as a reasonably prudent person. This contention was not considered by the court since it was not raised at trial.\\nA related case involving the same fire and decided on the same date by this court was Hesse v. Century Home, 267 Or 53, 514 P2d 871 (1973). Plaintiffs did not press the charge that defendant negligently caused the fire to start and for the purposes of the case the court classified the fire as of unknown origin. It was of unknown origin, though, only in that the fire may have been started by arson, defendant's employes, or by spontaneous combustion. The location of the origin of the fire was apparently admitted to be the trash box. The court then went on to state, 267 Or at 57:\\n\\\"We agree with the defendant that absent statute, one is not liable for the spread of a fire of unknown origin started on his property unless as a result of conditions created on his property he should have anticipated that a fire was likely to start. Aun\\u00e9 v. Oregon Trunk Railway, 151 Or 622, 624, 51 P2d 663 (1935), so held. There, a fire was started in empty box cars by a third party. On the other hand, in Ameil v. Schnitzer, 173 Or 179, 144 P2d 707 (1944), we determined that the jury could have found that the defendant knew or should have known that a fire could be anticipated on its premises and, therefore, the defendant had a duty to take precautions against the start and spread of a fire. If the jury found this to be a fact, the defendant could be held liable for the damage caused by the fire.\\\"\\nWith regard to the plaintiff's contention that defendant was negligent in not providing safety features such as a night watchman, proper extinguishers and hoses, and an automatic fire alarm system, the court stated, 267 Or at 59:\\n\\\" A defendant might be found negligent for failing to have certain safety devices if the probability of a fire starting on the premises is foreseeably substantially greater than on ordinary premises. As we have previously held earlier in this opinion, the jury could have found that the chances of a fire occurring in this trash box were substantially greater.\\\"\\nThe six charges of negligence alleged by the plaintiffs in the case at bar consist of essentially two bases of liability, though they both address the condition of the premises. The first basis of liability, that the nature, storage and location of materials on the premises caused the fire to spread to plaintiffs' property, is incorporated in the first four charges of negligence concerning the tote boxes and debris on the premises. The second basis of liability, that defendant was negligent in failing to provide safety features, is presented by the last two charges of negligence concerning the night watchman and sprinkler system.\\nWith regard to the first basis of liability, the first two allegations of negligence in this case concerning the materials, their storage and location are one, that the boxes were piled too close to the property line, and two, that the boxes were piled without fire breaks and without sufficient distance from the fence to allow fire equipment to circle around to fight the fire. Several factors distinguish these two allegations in the case at hand from those cases where the defendants were allowed to be found liable for the condition of their premises. The factors include whether the conditions relate to the \\\"start\\\" or \\\"spread\\\" of a fire, and if they relate to the spread of a fire, whether they are in violation of a statute or fire code provision, whether they are determined to be a public nuisance, and whether they involve highly combustible and negligently stored materials.\\nWhile the Hesse case also involved a fire of unknown origin, the focus of the opinion was on the connection of the property conditions to the \\\"start\\\" of the fire. As quoted above, the court stated that absent statute, one is not liable for fire of unknown origin unless because of conditions created on his property the person should have anticipated that the fire was likely to start. 267 Or at 57. The Aun\\u00e9 and Pac. N W Bell cases also focused on the \\\"starts\\\" of the fire.\\nThe Ameil case seemed to address the relation of the property conditions to both the start and spread of the fire, stating,\\n\\\" Clearly, the jury was warranted in finding that the defendants employed no precautions whatever to prevent the combustible material from igniting nor to prevent fire from escaping from their property to that of their neighbors.\\\" 173 Or at 190.\\nIt appears, though, that with regard to the spread of the fire the court did not consider \\\"the nature, storage and location of materials\\\" so much as the lack of safety measures such as a watchman and fire fighting equipment to contain a fire. To the extent the large piles of debris and oil-soaked sawdust were related solely to the spread of the fire, that condition is distinguishable from the case here in that there the condition was determined by the jury to be a \\\"public nuisance,\\\" was in violation of statutes prohibiting fire hazards on timberlands, and involved the improper storage of highly combustible materials.\\nThe substance of the first two allegations of negligence in this case is more properly regulated by statute or ordinance. In this heavy industrial zone there was no restriction on the size of tote box stacks and there were no set-back requirements with regard to property lines or requirements for fire breaks between the boxes. We do not find that defendant breached its duty of reasonable care in these circumstances.\\nIn addition, plaintiffs also have serious difficulties with these two allegations with regard to sufficiency of the evidence on the issue of causation. It is not contended that the pile was too large and improperly constructed, except that it was too close to the property line and there were no fire breaks within the pile. This latter factor is actually a safety feature and relates to the second basis of liability. As a matter of causation, the wind-borne fire igniting the top of the pile would seem to have made any fire breaks ineffective. There was also no evidence that the fire breaks would have made any difference. There is no evidence as to whether the trailer park would have binned that night if the tote boxes had not been present or if they had been a certain distance from the fence. As for the contention that there wasn't enough room next to the fence for fire equipment to enter and fight the fire, the fire chief testified that even had the tote boxes been moved away from the fence so a truck could get in between, it \\\"would have been too hot and the smoke too great to see where you was [sic] going.\\\"\\nThe third allegation of negligence asserts that it was negligent to pile the boxes next to the propane tank which ruptured and increased the heat which handicapped the firemen. We find no evidence that the rupturing of the tank handicapped the firemen and in fact the fire chief testified that it did not prohibit fighting the fire and was hardly noticeable since there was already so much heat and flame.\\nThe fourth allegation concerns inflammable debris on the premises which allowed the fire to spread. There is no evidence, however, that such debris in fact allowed the fire to spread. As noted above, Mr. Comfort testified that the fire spread from the buildings to the boxes by fire blowing over to and igniting boxes at the top of the pile. There is no evidence that whatever debris was present did significantly affect the fire, let alone \\\"allowed the fire to spread.\\\"\\nThe second basis of liability in this case, that the defendants were negligent in failing to provide the safety features of a night watchman and a sprinkler system, is presented by the last two allegations of negligence. Again, this case is distinguishable from previous decisions of this court which allowed defendants to be held liable for the condition of their premises. As quoted above, in the Hesse case the court determined that a defendant \\\"might be found negligent for failing to have certain safety devices if the probability of a fire starting on the premises is foreseeably substantially greater than on ordinary premises.\\\" 267 Or at 59. The court decided that the jury could have found that the chance of a fire occurring in the trash box was substantially greater. As applied to this case on the spread of fire, the Hesse analysis is relevant with regard to its focus on the nature of the material and its storage as giving rise to a foreseeably substantially greater probability of a fire spreading. Combustibility of the material, such as here of piled wood boxes, does not suffice. Rather, dangerously inflammable or explosive or hazardous materials or highly combustible materials, as oil-soaked sawdust in Ameil and Hesse, and their negligent storage are required before liability will be allowed for the spread of fire because of a lack of safety features. The Ameil case is also distinguishable from the one at hand because statutes were involved requiring owners of timberland to provide \\\"adequate protection against the starting or spread of fire thereon or therefrom which shall meet with the approval of the State Board of Forestry.\\\" 173 Or at 188.\\nThe basis for restricting liability in these circumstances for the spread of fire because of a lack of safety features was explained well in the case of Centraal Stikstof Verkoopkantoor u. Pensacola Port A., 205 F Supp 724 (1962):\\n\\\"In this case the Court finds that the complaint fails utterly to show a duty owing from defendant to plaintiff to maintain fire extinguishing apparatus, alarms and watchman. Nowhere in the common law has the Court been able to find a duty on a property owner to provide these things merely because it is possible that the adjacent property, being combustible, could catch fire. This is valid in the absence of allegation that the premises contained dangerously inflammable or explosive materials or that the defendant used fire for its own purposes on the premises. Such allegations raise a distinctly different standard. The imposition of such a duty here could lead to results at once harsh and unreasonable.\\n\\n\\\"The Court cannot go so far in the creation of specific duty. Virtually all buildings constructed of wood are highly combustible, i.e., they will bum if ignited. It cannot be said as a matter of law that there is such great or foreseeable danger in maintaining premises made of wood so as to make every person liable for fire spreading to adjoining premises unless there be handy in every instance fire fighting equipment, watchmen and/or alarms. If such duty is to evolve upon owners of property this should be done by statute. There is none, and the common law affords no basis for recovery.\\\"\\nWe agree with that reasoning and find no basis in the evidence upon which to predicate negligence in these respects.\\nAll and each of the specifications of negligence specifically depend upon defendants having actual or constructive knowledge of \\\"the danger from fire.\\\" The evidence is insufficient to submit that specific charge to the jury.\\nBecause of our determination of this case on these grounds, there is no need to address defendants' motion for a separate directed verdict on behalf of Mr. Robertson and defendants' appeal for a new trial on the basis of other alleged errors.\\nReversed.\\nWhile generally the phrase \\\"liability for spread of fire\\\" encompasses both the \\\"start\\\" and \\\"spread\\\" of a fire, in this case the \\\"spread of fire\\\" at issue is in the more restrictive sense and does not include the \\\"start\\\" of a fire.\\nThe basic reason for making a distinction between conditions alleged to be conducive to the start of a fire as opposed to conditions alleged to be conducive solely to the spread of a fire is a recognition of a different focus of concern for the two problems. The concern with regard to the start of the fire is with the ease of ignition of the material, as reflected in the description of materials in Pac. N WBell v. Century Home, 267 Or 46, 514 P2d 874 (1973), as \\\"highly combustible\\\" and in Ameil v. Schnitzer, 1730 Or 79,144P2d 707(1944), as \\\"very inflammable,\\\" and whether such materials are properly stored. The concern with regard to solely the spread of a fire, where the cause is unknown and not at issue, necessarily shifts from ignition point to combustibility of materials. All that is required for a fire to spread is that the materials involved bum. Mere combustibility of materials is not a proper focus of concern, though, where a fire already exists and the ignition point of most materials is already reached.\\nThese first two allegations in this case do not involve alleged negligent storage of \\\"highly combustible\\\" materials. To allow wood boxes to be considered as \\\"highly combustible\\\" would be to extend that classification of liability to essentially anything built of wood. Thus there is no reason to decide whether one may be held liable where negligently stored highly combustible materials are not involved in the start of a fire but only in its spread. Presumably one may be held liable in such a situation, though the issue of causation for spread due to those materials alone may be difficult to prove.\"}"

or/2175470.json

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+"{\"id\": \"2175470\", \"name\": \"HARVEY DEWITT PILGRIM, Petitioner on review, v. BOARD OF PAROLE, Respondent on review\", \"name_abbreviation\": \"Pilgrim v. Board of Parole\", \"decision_date\": \"1987-08-04\", \"docket_number\": \"CA A41689; SC S33876\", \"first_page\": \"689\", \"last_page\": \"691\", \"citations\": \"303 Or. 689\", \"volume\": \"303\", \"reporter\": \"Oregon Reports\", \"court\": \"Oregon Supreme Court\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-11T00:51:35.986458+00:00\", \"provenance\": \"CAP\", \"judges\": \"PER CURIAM\", \"parties\": \"HARVEY DEWITT PILGRIM, Petitioner on review, v. BOARD OF PAROLE, Respondent on review.\", \"head_matter\": \"Argued and submitted June 3,\\naffirmed August 4,\\nreconsideration denied October 20,1987\\nHARVEY DEWITT PILGRIM, Petitioner on review, v. BOARD OF PAROLE, Respondent on review.\\n(CA A41689; SC S33876)\\n740 P2d 784\\nLawrence E. Hall, Deputy Public Defender, Salem, argued the cause for petitioner on review. On the petition for review was Gary D. Babcock, Public Defender, Salem.\\nJ. Scott McAlister, Assistant Attorney General, Salem, argued the cause for respondent on review. With him on the brief were Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem.\\nPER CURIAM\", \"word_count\": \"290\", \"char_count\": \"1817\", \"text\": \"PER CURIAM\\nPetitioner was convicted of two counts of burglary in the second degree and was sentenced to two five-year terms of imprisonment to run consecutively.\\nAt petitioner's prison term hearing, the Board of Parole (Board) established a history/risk score of 2, crime category 5 with a matrix range of 62 to 78 months and set petitioner at 62 months with a release date of January 5,1991.\\nPetitioner appealed from the final order of the Board dated August 15, 1986. The Court of Appeals affirmed from the bench.\\nPetitioner seeks review, alleging that the Board failed to satisfy the requirements of ORS 144.135 and to consider certain factors in mitigation. Petitioner's procedural contentions are answered in Anderson v. Board of Parole, 303 Or 618, 740 P2d 760 (1987).\\nPetitioner received a set prison term of 62 months after the Board found that he produced a weapon during the burglary and threatened personal injury, and that petitioner had a history of repetitive assaultive conduct and a serious alcohol abuse problem. Petitioner stated no understandable mitigation at the Board hearing, and made no complaint as to the application of the consecutive sentences.\\nThe decision of the Court of Appeals is affirmed.\"}"

or/2180157.json

@@ -0,0 +1 @@
+"{\"id\": \"2180157\", \"name\": \"DINSDALE, Respondent on Review, v. YOUNG et al, Petitioners on Review\", \"name_abbreviation\": \"Dinsdale v. Young\", \"decision_date\": \"1985-10-01\", \"docket_number\": \"CA A32510; SC S31805\", \"first_page\": \"78\", \"last_page\": \"84\", \"citations\": \"300 Or. 78\", \"volume\": \"300\", \"reporter\": \"Oregon Reports\", \"court\": \"Oregon Supreme Court\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-11T02:12:51.196489+00:00\", \"provenance\": \"CAP\", \"judges\": \"LINDE, J.\", \"parties\": \"DINSDALE, Respondent on Review, v. YOUNG et al, Petitioners on Review.\", \"head_matter\": \"Argued and submitted September 4,\\nreversed October 1,\\nreconsideration denied December 3, 1985\\nDINSDALE, Respondent on Review, v. YOUNG et al, Petitioners on Review.\\n(CA A32510; SC S31805)\\n706 P2d 944\\nPhilip Schradle, Assistant Attorney General, Salem, argued the cause for petitioners on review. With him on the petition were Dave Frohnmayer, Attorney General, James E. Mountain, Jr., Solicitor General, and Michael D. Reynolds, Assistant Attorney General, Salem.\\nRobert L. Nash, Bend, argued the cause for respondent on review.\\nLINDE, J.\", \"word_count\": \"1818\", \"char_count\": \"11246\", \"text\": \"LINDE, J.\\nThe Ground Water Act of 1955, ORS 537.505 to 537.795, requires a permit from the Water Resources Director before one may appropriate underground water for large-scale uses such as irrigation. The statute contains provisions under which the director may close an area to further appropriations of ground water or take other protective steps if, after conducting a proceeding for the determination of a \\\"critical ground water area,\\\" the director makes certain findings concerning the quantity or quality of the ground water supply or interference among competing users. ORS 537.730 to 537.735.\\nPetitioner Dinsdale, who farms land in the Fort Rock basin, had two applications for ground water permits pending when the director, on March 26, 1984, initiated a proceeding for determination whether the basin was a critical ground water area. The director's \\\"proclamation\\\" announcing the proceeding stated that no application for a permit to appropriate ground water from the basin's main ground water reservoir would be approved or denied until completion of the proceeding. The present case arises from efforts by petitioner and others to challenge the legality of this moratorium. A petition for a writ of mandamus to compel the director to \\\"complete the issuance of plaintiffs' water permit applications\\\" was dismissed by the circuit court, and the dismissal was affirmed by the Court of Appeals. Dinsdale v. Young, 72 Or App 778, 697 P2d 200 (1985). On July 6, 1984, petitioner filed in the Court of Appeals a petition for judicial review of the director's proclamation. The petition asserted that the proclamation was invalid for lack of statutory authority to impose the moratorium, for failure to follow rulemaking procedure, and for lack of a factual basis for initiating the critical ground water area proceeding.\\nThe parties and the Court of Appeals were troubled by the question whether the court had jurisdiction over this petition. Petitioner's brief stated that a \\\"proclamation\\\" is not an \\\"order\\\" or \\\"rule\\\" as defined in the Administrative Procedure Act, ORS 183.310(5) or (8), or otherwise defined or recognized in that act or in ORS chapter 537. The director's response maintained that because the proclamation was not an order in a contested case, reviewable by the Court of Appeals under ORS 183.482, or a rule, reviewable by virtue of ORS 183.500, the court lacked subject matter jurisdiction.\\nThe use of a \\\"proclamation\\\" was derived from a rule promulgated by the director, OAR 690-10-050, which so far as relevant here provides:\\n\\\"(1) A proceeding for the determination of a critical ground water area shall be initiated by a Proclamation of the Water Resources Director.\\n\\\"(2) The Proclamation shall include:\\n\\\"(a) A description of the proposed exterior boundaries of the critical ground water area, referenced to the U. S. Public Lands Survey.\\n\\\"(b) Citation to the specific statutory provision or provisions under which the proceeding is brought.\\n\\\"(c) The preliminary findings indicating why the area described may be a critical ground water area.\\n\\\"(d) A general description of the nature of the ground water reservoir which is the subject of the determination.\\n\\\"(e) A statement that no application for a permit to appropriate water from the ground water reservoir in question will be approved or denied prior to completion of the proceeding for determination of a critical ground water area.\\n\\\"(f) The effective date of the proclamation.\\\"\\nPetitioner's brief asserted that the rule was invalid for failure to follow rulemaking procedure required by ORS 183.335 and that in any event the rule could not create authority to proclaim a moratorium on pending applications whenever the director commences a critical ground water area proceeding. Petitioner also challenged the proclamation itself for failure to follow rulemaking procedure. He therefore contended that the director \\\"erred in failing to process and issue groundwater appropriation permits\\\" upon petitioner's applications.\\nThe Court of Appeals held that the proclamation itself was neither a final order in a contested case nor a rule and therefore was not directly within the court's jurisdiction. However, the court concluded that by appending a copy of OAR 690-10-050 as the supposed authority for the challenged moratorium, petitioner \\\"succeeded \\u2014 although not by a comfortable margin \\u2014 in invoking our jurisdiction, but only to consider the validity of OAR 690-10-050(2)(e).\\\" Dinsdale v. Young, 72 Or App 642, 645, 697 P2d 196 (1985). The court then held that the rule exceeded the director's statutory authority insofar as it provided for delaying pending applications during a critical ground water area proceeding. We allowed review.\\nWe agree with the Court of Appeals that the petition sufficed to invoke its jurisdiction to review OAR 690-10-050. It is not obvious on the face of that rule that the director's decision on pending applications is derived from OAR 690-10-050(2) (e). Literally, the subsection does not purport to create a policy of delaying such decisions; it only says that a proclamation initiating a proceeding for determination of a critical ground water area shall inform people of that effect. The director, however, treats the rule as the source of the policy. His brief states that the moratorium on pending permit applications is required \\\"not by the proclamation, but by OAR 690-10-050,\\\" and he defends the validity of the rule.\\nThe obstacle to review is not the jurisdiction of the Court of Appeals but its scope of review. Review of the director's rules does not depend only on the Administrative Procedure Act. Neither the director nor the Court of Appeals referred to petitioner's citation of ORS 537.790, the judicial review section of the Ground Water Act. That section provides:\\n\\\"Any person who deems himself aggrieved by any order, rule or regulation of the Water Resources Director under ORS 537.505 to 537.795 may appeal from the same to the Court of Appeals as provided in ORS 183.480 for the review of orders in contested cases. No order of the director shall be disturbed when there is substantial evidence to support it. No rule or regulation of the director shall be disturbed unless it is affirmatively made to appear that the same substantially and unjustly discriminates against the complainant to his prejudice and in favor of others similarly situated.\\\"\\nIt clearly gives the Court of Appeals jurisdiction to review OAR 690-10-050. But the last sentence of ORS 537.790 requires more than an assertion that a rule adversely affects Mi applicant or other complainant. It requires an affirmative snowing that the rule \\\"substantially and unjustly discriminates against the complainant to his prejudice and in favor of others similarly situated.\\\" Petitioner has not claimed or shown that OAR 690-10-050 discriminates against him in favor of others similarly situated.\\nWe do not know why ORS 537.790 so limits the court's review of the director's rules under the Ground Water Act, but the limitation was deliberate. It was enacted as part of the original act in 1955. Or Laws 1955, ch 708, \\u00a7 34. The first two sentences are almost identical to the judicial review section of the water law revisions enacted at the same time, Oregon Laws 1955, chapter 707, section 76, and now codified as ORS 536.560, but the final sentences appear only in the Ground Water Act. Nor can we regard ORS 537.790 as a remnant of pre-APA judicial review that has been implicitly repealed or superseded by the Administrative Procedure Act. When ORS 537.790 was amended in 1973 to shift appellate jurisdiction from circuit courts to the Court of Appeals, the legislature retained the requirement that a challenge to a rule under the Ground Water Act must show discrimination against the complainant and in favor of others similarly situated. Or Laws 1973, ch 612, \\u00a7 15.\\nIf OAR 690-10-050(2) (e) discriminates between similarly situated applicants for ground water appropriation permits, that is not apparent from its text. The director says that the moratorium serves the statutory policy of according applications priority in the order of their dates of filing rather than rejecting them because of doubts about adequate water supplies or interference with existing water rights and requiring new filings. See ORS 537.525(2), (3), (7) and (8), 537.620, ORS 537.622, 537.625(3). If petitioner believes that the rule discriminates against him and in favor of others similarly situated, he has not attempted to argue or \\\"affirmatively made [it] appear\\\" in this appeal, as ORS 537.790 requires. The Court of Appeals therefore should not have reached other contentions against OAR 690-10-050, and its opinion on the validity of the rule should not be deemed authoritative.\\nFor the reasons stated in this opinion, the decision of the Court of Appeals is reversed.\\nThe questions facing petitioner in choosing the proper court and the proper remedy in this case is another instance of the kind of problem that could be avoided by a single, comprehensive statute for judicial review of governmental actions. See Safriet, Judicial Review of Governmental Action: Procedural Quandaries and a Plea for Legislative Reform, 15 Envtl L Rev 217 (1985). A bill proposed by the Joint Interim Committee on Judiciary would have eliminated the risk of a fatally wrong choice and the need for refiling by providing that a petition for review could request mandatory as well as other kinds of relief, and that a petition filed in the wrong court would not be dismissed, as Dinsdale's petition for mandamus was, but would be transferred to the proper tribunal. See House Bill 2256 (1985) \\u00a73(3), 5(3), 6(2) (transfer between tribunals), \\u00a720(1) (appropriate relief).\\nThe petition did not assert and the Court of Appeals did not consider the possibility that the proclamation might be a non-final order made \\\"without probable cause\\\" and causing \\\"substantial and irreparable harm if interlocutory relief is not granted.\\\" ORS 183.480. If a reviewable order is invalid, the fact that a rule announcing the agency's policy cannot be attacked in a direct proceeding for judicial review of the rule would not save the order.\\nORS 536.560:\\n\\\"Any person, public corporation or state agency aggrieved by any order, rule or regulation of the Water Policy Review Board under chapter 707, Oregon Laws 1955, may appeal from the same to the circuit court of the county in which the property affected by such order, rule or regulation or any part of such property is situated. The appeal may be carried from the circuit court to the Court of Appeals. The appeal shall be governed by the practice in an action not triable by right to a jury.\\\"\"}"

or/2183238.json

@@ -0,0 +1 @@
+"{\"id\": \"2183238\", \"name\": \"STATE OF OREGON, Respondent on Review, v. L. T. MARTIN, Petitioner on Review\", \"name_abbreviation\": \"State v. Martin\", \"decision_date\": \"1984-12-04\", \"docket_number\": \"TC M176267; CA A25726; SC S30304\", \"first_page\": \"264\", \"last_page\": \"269\", \"citations\": \"298 Or. 264\", \"volume\": \"298\", \"reporter\": \"Oregon Reports\", \"court\": \"Oregon Supreme Court\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T21:11:40.079659+00:00\", \"provenance\": \"CAP\", \"judges\": \"CAMPBELL, J.\", \"parties\": \"STATE OF OREGON, Respondent on Review, v. L. T. MARTIN, Petitioner on Review.\", \"head_matter\": \"Argued and submitted April 3,\\njudgment of Court of Appeals reversed, judgment of trial court reversed and remanded to trial court with directions December 4,1984\\nSTATE OF OREGON, Respondent on Review, v. L. T. MARTIN, Petitioner on Review.\\n(TC M176267; CA A25726; SC S30304)\\n691 P2d 908\\nRichard S. Pope, Portland, argued the cause and filed the brief for petitioner. With him on the brief were Spears, Lubersky, Campbell & Bledsoe, and Michael J. Lilly, Portland.\\nThomas H. Denney, Assistant Attorney General, Salem, argued the cause and filed the brief for Dave Frohnmayer, Attorney General, and William F. Gary, Solicitor General, Salem.\\nCAMPBELL, J.\", \"word_count\": \"1450\", \"char_count\": \"8438\", \"text\": \"CAMPBELL, J.\\nThe defendant was charged with and convicted of failure to perform the duties of a driver involved in an accident, ORS 483.602. In his appeal to the Court of Appeals one of his assignments of error was that the trial judge denied his motion for acquittal. The Court of Appeals affirmed without opinion. State v. Martin, 65 Or App 814, 671 P2d 1211 (1983). We granted review primarily to evaluate the statute involved in this case. We reverse and remand to the trial court for entry of judgment of acquittal.\\nOn December 3,1981, at about 6:45 a.m., defendant, a parking lot attendant at a downtown Portland parking lot, was in the process of parking a car. The complainant pulled her car into the lot behind defendant, stopped and turned off her lights. Defendant accidently backed the car he was parking into the front of complainant's car, causing some damage to her car. There were no personal injuries as a result of the accident.\\nWe view the testimony in the light most favorable to the state. The complainant twice asked defendant for information required by ORS 483.602(2)(a) and (b). Defendant told her that he did not have time right then to talk. It was the beginning of the morning rush hour for parking. Complainant testified there were already three or four cars waiting to be parked when she arrived at the lot. Defendant was the sole attendant at the lot.\\nComplainant then got back into her car and drove out of the parking lot without identifying herself or her passenger or leaving any information. Complainant worked across the street from the parking lot and testified that she expected defendant to be there when she came back and did not think that he would leave.\\nA short while later she returned with two police officers. One of the police officers asked defendant for information about the accident, defendant told the officer that he didn't have time to talk right then. He was ultimately charged with failure to perform the duties of a driver involved in an accident. ORS 483.602(4)(b).\\nTwo to three minutes elapsed from the time the police arrived to the time they transported the defendant from the lot to the police station. The arrest was made about 7:00 a.m., 15 minutes after the accident.\\nAt issue is whether ORS 483.602 applies to a person involved in an accident causing only property damage to another vehicle when that person does not leave the scene of the accident but does not immediately provide the information required by statute. The pertinent parts of the statute are as follows:\\n\\\"(1) The driver of any vehicle involved in an accident which results in injury or death to any person or causes damage to a vehicle which is driven or attended by any person, immediately shall stop such vehicle at the scene of the accident, or as close thereto as possible, and shall remain at the scene of the accident until the driver has fulfilled the requirements of subsection (2) of this section. Every such stop shall be made without obstructing traffic more than is necessary.\\n\\\"(2) The driver of any vehicle involved in any accident resulting in injury or death to any person or damage to any such vehicle shall:\\n\\\"(a) Give to the other driver or surviving passenger, or any person not a passenger injured as a result of such accident, the name, address and the registration number of the vehicle which the driver is driving, and the name and address of any other occupants of such vehicle.\\n\\\"(b) Upon request and if available, exhibit and give the number of the operator's or chauffeur's license of the driver to the person injured, or to the occupant of or person attending any vehicle damaged.\\n\\n\\u00ab(4)\\n\\\"(b) A driver involved in an accident which results only in damage to a vehicle which is driven or attended by any other person and who fails to perform the duties required under subsection (1) of this section commits a Class A misdemeanor.\\\" (Emphasis added.)\\nThe only reported cases involving ORS 483.602 are cases in which defendants left the scene of an accident without giving required help or information. State v. Eastman, 292 Or 184, 637 P2d 609 (1981); State v. Reynolds, 229 Or 167, 366 P2d 524 (1971). See also State v. Corpuz, 49 Or App 811, 621 P2d 604 (1980); State v. Burris, 10 Or App 297, 500 P2d 265 (1972); State v. Hulsey, 3 Or App 64, 471 P2d 812 (1970).\\nIt is defendant's contention that because he did not leave the scene of the accident, he did not and could not violate ORS 483.602 as the statute is clear and unambiguous and requires only that a person not leave until the required information has been given. He cites Monaco v. U.S. Fidelity and Guarantee Co., 275 Or 183, 550 P2d 422 (1976) for the proposition that a statute that is clear on its face cannot be interpreted differently.\\nIn Monaco v. U.S. Fidelity and Guarantee Co., supra, the court, in discussing the interpretation of a statute, stated:\\n\\\"Whatever the legislative history of an act may indicate, it is for the legislature to translate its intent into operational language. This court cannot correct clear and unambiguous language for the legislature so as to better serve what the court feels was, or should have been, the legislature's intent. Lane County v. Heintz Construction Co., et al, 228 Or 152, 157, 364 P2d 627 (1961).\\\" 215 Or at 188.\\nThe language of ORS 483.602 is clear. A person involved in an accident must immediately stop at the scene of the accident and must remain there until certain requirements are met.\\nThere is no legislative history on file that pertains to the policy reasons behind ORS 483.602. However, it seems clear that the individual and public interest behind ORS 483.602(4) (b) is to penalize a driver who attempts to escape his financial responsibility for damage or attempts to escape criminal or civil prosecution by fleeing the scene of an accident without giving the required information to the other party.\\nDefendant was charged with a violation of ORS 483.602(4) (b). That subsection requires that a person perform the duties required under subsection (1). Subsection (1) of ORS 483.602 requires that the driver stop and \\\"remain at the scene of an accident until the driver has fulfilled the requirements of subsection (2).\\\" Subsection (2) merely lists the information that must be given before a person involved in an accident leaves the scene of the accident. A failure to perform the requirements of subsection (2) does not constitute a violation standing alone.\\nIt is clear that the evil the legislature focused on is what has become commonly known as \\\"hit and run\\\" because subsection (4)(b) provides that a violation cannot occur unless subsection (1) is violated. \\\"But the court is not authorized to extend the language of the law beyond its natural meaning to accomplish salutary ends, for that would be to legislate and not to construe.\\\" Union Pacific Railroad Co. v. Anderson, 167 Or 687, 697, 120 P2d 578 (1941). ORS 174.010 directs us, in construing a statute, \\\"to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted .\\\"\\nDefendant did not leave the scene of the accident, complainant did. The legislature did not choose to cover defendant's acts in its legislative scheme.\\nReversed and remanded to the trial court for entry of judgment of acquittal.\\nORS 483.602 is classified as a major traffic offense by ORS 487.530(3) and therefore applies to all premises that are open to the general public. ORS 486.535. In State v. Mulder, 290 Or 899, 629 P2d 816 (1981), we indicated that this may include private parking lots and clearly was meant to include public parking lots. The evidence in this case shows that although the parking lot was privately owned, it was open to the public.\"}"

or/2202496.json

@@ -0,0 +1 @@
+"{\"id\": \"2202496\", \"name\": \"In the Matter of the Marriage of DREVERS, Petitioner (below), and DREVERS, Respondent (below); STATE ex rel DREVERS, Respondent on Review, v. DREVERS, Petitioner on Review\", \"name_abbreviation\": \"State ex rel. Drevers v. Drevers\", \"decision_date\": \"1989-10-26\", \"docket_number\": \"TC D087-258; CA A48832; SC S36171\", \"first_page\": \"462\", \"last_page\": \"464\", \"citations\": \"308 Or. 462\", \"volume\": \"308\", \"reporter\": \"Oregon Reports\", \"court\": \"Oregon Supreme Court\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-11T01:12:02.488224+00:00\", \"provenance\": \"CAP\", \"judges\": \"PER CURIAM\", \"parties\": \"In the Matter of the Marriage of DREVERS, Petitioner (below), and DREVERS, Respondent (below). STATE ex rel DREVERS, Respondent on Review, v. DREVERS, Petitioner on Review.\", \"head_matter\": \"Argued and submitted October 4,\\nthe decision of the Court of Appeals and judgment of circuit court reversed and remanded to the circuit court for further proceedings October 26, 1989\\nIn the Matter of the Marriage of DREVERS, Petitioner (below), and DREVERS, Respondent (below). STATE ex rel DREVERS, Respondent on Review, v. DREVERS, Petitioner on Review.\\n(TC D087-258; CA A48832; SC S36171)\\n781 P2d 343\\nJerry B. Hart, McMinnville, argued the cause for petitioner on review. With him on the petition was Craig, Brand, Lake & Hart, McMinnville.\\nMichael C. Livingston, Assistant Attorney General, Salem, argued the cause for respondent on review. With him on the response were Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem.\\nPER CURIAM\", \"word_count\": \"303\", \"char_count\": \"1814\", \"text\": \"PER CURIAM\\nIn this proceeding, the defendant was found in contempt and ordered \\\"placed in the custody of the Yamhill County Sheriff for a period not to exceed 30 days.\\\" The defendant appealed, claiming that the state did not prove that the defendant wilfully disobeyed a court order. The Court of Appeals affirmed without opinion. 95 Or App 582, 770 P2d 619 (1989).\\nAfter the trial court's decision, but before the Court of Appeals' decision, the Supreme Court of the United States decided Hicks v. Feiock, 485 US 624, 108 S Ct 1423, 99 L Ed 2d 721 (1988), and held that, in criminal contempt cases, the contempt must be proved beyond a reasonable doubt. After the defendant filed a petition for review, the plaintiff State of Oregon joined in the request that this case be remanded to the trial court for further proceedings in light of Hicks. We therefore reverse the decision of the Court of Appeals and the judgment of the circuit court and remand this case to the circuit court for further proceedings in light of Hicks v. Feiock, supra.\"}"

or/2226893.json

@@ -0,0 +1 @@
+"{\"id\": \"2226893\", \"name\": \"THIESSEN v. WORTHINGTON\", \"name_abbreviation\": \"Thiessen v. Worthington\", \"decision_date\": \"1902-04-07\", \"docket_number\": \"\", \"first_page\": \"145\", \"last_page\": \"149\", \"citations\": \"41 Or. 145\", \"volume\": \"41\", \"reporter\": \"Oregon Reports\", \"court\": \"Oregon Supreme Court\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T19:37:52.848307+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"THIESSEN v. WORTHINGTON.\", \"head_matter\": \"Decided 7 April, 1902.\\nTHIESSEN v. WORTHINGTON.\\n[68 Pac. 424.]\\nUnascertained Boundaries \\u2014 Settlement ex Agreement.\\nWhere the boundary line between adjoining proprietors is unascertained, and they agree on a division line, and take possession accordingly, and acquiesce therein, the line so agreed on is binding on the parties and their privies, and one of such owners, or his successor in interest, is entitled to a reformation of his deed so as to make the agreed line the boundary of his land.\\nFrom Clackamas: Thomas A. McBride, Judge.\\nSuit by Henry Thiessen against T. B-. Worthington and others. From a decree for plaintiff, defendants appeal.\\nAffirmed.\\nFor appellants there ivas a brief over the^ names of L. L. Porter, and G. D. & D. C. Latouretle, with an oral argument by Mr. Porter, and Mr. D. G. Latourette.\\nFor respondent there was a brief and an oral argument by Mr. Algernon 8. Dresser, and Mr. Edw. Mendenhall.\", \"word_count\": \"1374\", \"char_count\": \"7884\", \"text\": \"Mr. Chief Justice Bean\\ndelivered the opinion.\\nThis is a suit to reform a deed. The facts, in brief, are that in July, 1874, Wm. Atkinson and Thomas and Pilgrim Neil purchased 400 acres of land in Clackamas County under an agreement that Atkinson should take the title to the entire tract, and convey to the Neils the east half thereof. The land was accordingly deeded to Atkinson on the 8th, and on the next day, without any survey having been made, or any steps taken to ascertain the division line, Atkinson conveyed to the Neils what was supposed and intended to be the east half thereof. In the spring of \\u00cd876, at the instance of Atkinson and the Neils, the county surveyor established the division line, and it was understood and agreed that the line so located should constitute the true line dividing their respective premises. Very soon thereafter Thomas Neil sold and conveyed his interest in the east half to his brother, describing it in accordance with the description furnished by the surveyor. On October 3, 1879, Pilgrim Neil sold and conveyed the entire east half to the plaintiff by the description in his deed from Thomas. The division line as run by the county surveyor and agreed upon by the parties was about two rods west of the line called for in the deed from Atkinson to the Neils made in July, 1874, but after it had been established the respective parties occupied and lived up to it and recognized it as the true boundary line. In November, 1878, Atkinson sold his part of the land to Thomas Neil, but by mistake used the description furnished by the scrivener who drew the deed from him to the Neils in July, 1874, instead of that furnished by the surveyor. On April 6, 1880, Thomas Neil sold to one James Wetzler, using in his conveyance the same description as in the deed to him from Atkinson, and Wetzler afterwards sold to the defendant according to the same description. The division line agreed upon was, however, recognized by all the owners of the property from Atkinson and the Neils down to the plaintiff and defendant, until some time in 1890, when a survey was made by another surveyor, and it was found that the boundary of the tract described in the deed from Atkinson to the Neils and in the deeds under which the defendant holds did not conform to the agreed division line, but was some two rods east thereof. The defendants thereupon brought an action against the plaintiff to recover possession of the tract between the two lines, and upon a trial the plaintiff was defeated, and thereupon brought this suit to correct the deeds so that they might conform to the agreed line. Plaintiff had a decree in his favor, and the defendants appeal.\\nThe facts are practically undisputed. Atkinson and Thomas Neil, two of the original parties to the transaction, testify that it was the understanding and agreement that the line run by the county surveyor in 1876 should be the true division line between their premises, and the evidence shows beyond controversy that the respective owners thereafter occupied up to such line without question until the resurvey in 1890. It is familiar law that, while the title to land cannot be transferred by parol, an agreement made by proprietors of adjacent tracts settling a disputed boundary, or one that is uncertain or unascertained, is not within the statute of frauds, and, if followed by corresponding possession, is binding on the parties, not because it passes title, but because it determines the location of the estate of each, and places beyond future doubt the true line of separation between them: 4 Am. & Eng. Ency. Law (2 ed.), 859; Tyler, Boundaries, 254; Newell, Ejectment, p. 556, \\u00a7 22; Yates v. Shaw, 24 Ill. 367; Cutler v. Callison, 72 Ill. 113; City of Bloomington v. Bloomington Cemetery Assoc. 126 Ill. 221 (18 N. E. 298); Harn v. Smith, 79 Tex. 310 (15 S. W. 240, 23 Am. St. Rep. 340). \\\"This principle proceeds upon the ground,\\\" says Mr. Justice Craig in Cutler v. Callison, 72 Ill. 113, \\\"not that title can pass by parol agreement, but that the extent of the ownership of the land of each has been agreed upon, settled, and finally determined (citing authorities). The courts always look with favor upon the adjustment of controverted matters of this character by agreement of the parties in interest; and when an agreement to establish a boundary line is fairly and clearly made, and possession of the land held according to the line so agreed upon, no reason is- perceived why such agreement should not be conclusive. ' ' When a disputed, uncertain, or unascertained boundary is thus settled by agreement of the parties, and is followed by occupation in accordance therewith, it is not only binding upon the immediate parties to the contract, but on those claiming under them: Pickett v. Nelson, 71 Wis. 542 (37 N. W. 836); Jacobs v. Moseley, 91 Mo. 457 (4 S. W. 135); Atchison v. Pease, 96 Mo. 566 (10 S. W. 159). Within the doctrine of these cases the division line agreed upon by Atkinson and the Neils must be regarded as the true boundary line between the tyo tracts of land. It was a boundary uncertain and unascertained, and it was competent for the parties to locate it by parol; and such location, having been acquiesced in and recognized, is conclusive and binding upon the parties and their successors in interest.\\nA contention is made on behalf of the defendant that the purpose of the survey by the county surveyor in 1876 was not so much to locate the boundary as to ascertain the line dividing the tract into two equal parts, and there are some statements in the testimony of Atkinson and the Neils which, taken by themselves, lend color to such contention; but when testifying directly as to the purpose of the smwey and the agreement of the parties they state positively that it was understood and intended at the time that the line so run and marked on the ground should be the true division line, and should mark the boundaries of the two tracts of land. Having been so established and acquiesced in for at least fourteen years, it ought not now to be disturbed; for, as said by the Supreme Court of Illinois in a somewhat similar ease: \\\"Many of the most skilled and experienced surveyors differ more or less in determining where they (lines) were located. Lines and corners that are supposed to be fixed and established by one surveyor are overturned or left in doubt by another at a subsequent period. In all matters of uncertainty and dispute the parties may, without doubt, compromise, and end the dispute. And they may as certainly fix, by agreement, the boundary lines separating their lands as other disputes. And when they have thus agreed upon the position of such boundary, and have acted upon it as the true line, they should be estopped from asserting another and different line\\\": Yates v. Shaw, 24 Ill. 367. From these views it follows that the decree of the court below should be affirmed, and it is so ordered.\\nAffirmed.\"}"

or/2231154.json

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+"{\"id\": \"2231154\", \"name\": \"HILTS v. HILTS\", \"name_abbreviation\": \"Hilts v. Hilts\", \"decision_date\": \"1903-06-08\", \"docket_number\": \"\", \"first_page\": \"162\", \"last_page\": \"166\", \"citations\": \"43 Or. 162\", \"volume\": \"43\", \"reporter\": \"Oregon Reports\", \"court\": \"Oregon Supreme Court\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T20:00:43.419182+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"HILTS v. HILTS.\", \"head_matter\": \"Decided 8 June,\\nrehearing denied 3 August, 1903.\\nHILTS v. HILTS.\\n[72 Pac. 697.]\\nFiling, Papees \\u2014 Payment op Fee \\u2014 Statutes.\\n1. The general rule that a paper is filed when it has been delivered to the proper officer and received to be kept in the official records, does not apply where the payment of a stated fee is made a prerequisite \\u2014 in the latter ease the paper is not filed until the fee has been paid. Where a statute requires that a transcript, for example, shall be filed with the clerk of the appellate court by a certain time after perfecting the appeal, and that the appellant, on filing the transcript, shall pay to the clerk a stated fee in advance, the transcript is not filed until the fee has been paid, notwithstanding its delivery into the possession of the officer.\\nAppeal \\u2014Motion to Apeieji oe Dismiss.\\n2. Under B. & O. Comp, g 653, requiring the appellant to file a transcript, after which the appellate court shall have j urisdiction, and not otherwise, and providing that if the transcript is not filed within the time fixed, the appeal shall be deemed abandoned, a failure to file a transcript in time maybe taken advantage of by motion to dismiss theappeal, and a motion.to affirm the judgment is not the exclusive remedy.\\nFrom Union: Robert Eakin, Judge.\\nAction by J. M. Hilts against Rachel Hilts. Judgment for defendant, and plaintiff appeals. Heard on a motion to dismiss the appeal. Dismissed.\\nMr. J. W. Knowles for the motion.\\nMr. J. D. Slater, contra.\", \"word_count\": \"1391\", \"char_count\": \"7782\", \"text\": \"Mr. Justice Wolverton\\ndelivered the opinion.\\nThis is a motion by respondent to dismiss the appeal because (1) the transcript was not filed in this court within the time required by law, or any extension by the trial court; and (2) the notice of appeal was not served upon the district attorney. This motion was argued and submitted on the first day of the term, but, reserving its decision thereon, the court subsequently heard the case upon its merits. In the .view we take of the matter, a decision upon the first ground assigned in the motion will dispose of the case.\\nBy order of the trial court, made and entered November 5,1902, the time within which defendant was required to file the transcript of the cause in this court was enlarged to the 3d of the following month. It was received on\\\"that date by the deputy clerk at Pendleton, and a notation made in the docket of its receipt; but the filing fee of $15, which should accompany it, remaining unpaid until December 16th, it was not filed until the latter date. It may be noted, however, that upon receipt of the transcript the deputy clerk, by mistake, notified the attorney for respondent of the failure to forward the filing fee, but, upon being informed of his mistake, notified appellant's attorney, who at once forwarded it. The appellant insists that, notwithstanding this state of the case, there has been a proper filing of the transcript within the prescribed time, and that she is therefore entitled to a decision upon the merits. The statute provides, in effect, that, upon an appeal being perfected, the appellant shall, within thirty days, or within such extension of time as the trial court, or judge thereof, or the supreme court, or a justice thereof, may allow, file with the clerk of the supreme court a transcript, or such an abstract as the rules of the appellate court may require, and that upon the filing thereof he shall pay to such clerk the sum of $15, which, with all other fees collected by virtue of his office, shall be paid to the state treasurer: B. & C. Comp. \\u00a7 553, 887. The general rule operating under ordinary statutes regarding the filing of a paper or docu ment is that it is filed when delivered to the proper officer, and by him received to be kept on file: Bouvier's Law Diet. (Rawle's Rev.); 13 Am. & Eng. Ency. Law (2 ed.), 15; McDonald v. Crusen, 2 Or. 258: Moore v. Willamette T. & L. Co. 7 Or. 359; Powers v. State, 87 Ind. 144; Peterson v. Taylor, 15 Ga. 483 (60 Am. Dec. 705); Floyd v. Chess-Carley Co, 76 Ga. 752; Gorham v. Summers, 25 Minn. 81; Reed v. Acton, 120 Mass. 130; Tregambo v. Comanche M. & M. Co., 57 Cal. 501.\\nBut a filing may depend upon the terms of the statute authorizing it, and will not become operative until the requisites are first complied with, at least in substance; and, if a fee is made a necessary prerequisite thereto, no filing is accomplished or effected without the payment of such fee. To illustrate: Under an Indiana statute the Secretary of State was required to exact certain fees for filing and recording an agreement of railroad companies to consolidate, which provided that he should neither file nor record any of such articles unless all the fees for filing were first paid; and it was held, in State v. Chicago & E.I. Ry. Co. 145 Ind. 229 (43 N. E. 226), that the payment of such fees was a condition precedent to the filing \\u2014 in other words, that the filing could not be effected without the prior payment of the requisite fees \\u2014 the court saying: \\\"The rule may be asserted that where the statute provides that the filing fee shall be paid in advance of the filing of th\\u00e9 document, and where the money therefor does not, under the law, go to the officer with whom the same is required to be filed, as his own remuneration, but goes into the public treasury for the benefit of the state, as it does in accordance with the requirements of the statute in question, the officer must be considered (at least in discharge of the duty enjoined upon him to collect the fee in advance for the services rendered by the state through him) as the agent of the latter; and, as such, he is not authorized to file the papers or articles presented and required to be filed, although they may be left at his office or in his custody for such purpose, until the fee is first paid ; and, in consideration of law, they cannot be held or deemed to be filed until there is a compliance with this requisite condition. Under such circumstances the law is the letter of the officer's agency, and he has no warrant to waive the advance payment of the fee.\\\" A rule of similar import is promulgated in Pinders v. Yager, 29 Iowa, 468, and we are of the opinion that it should be applied under the circumstances in the case at bar. Upon filing the transcript the appellant is required to pay to the clerk, in advance, the sum of $15. Nothing could be plainer than a legislative intendment that the fee, ultimately to be paid over to the State Treasurer, should be prepaid as a prerequisite to the filing; and, without such an observance of the statute, there could be no filing. The purpose, no doubt, was to facilitate the collection of the public revenue derivable from this source, and the filing was therefore made dependent upon its prepayment. In the present instance the transcript was not received by the clerk to be kept on file, as he refused to so treat it, or to make a notation of filing thereon, until the fee was paid, thus rightly interpreting the statute; and, the fee not having been paid in advance, there was no filing, within the purview of the law,within the prescribed limit for filing such transcript; hence the motion should be allowed, and the appeal dismissed. However desirous it may be to have causes disposed of on their merits, the court cannot evade or override a positive statute to enable it to do so. Indeed, it can acquire no jurisdiction for that purpose in the face of such statute.\\nIt is suggested that the motion should have been to affirm the judgment rendered (B. & C. Comp. \\u00a7 553), and not to dismiss; but the latter is employed in . constant practice, and is adequate for the purpose of presenting the question whether or not the appeal has been perfected so as to give the appellate court jurisdiction of the cause.\\nDismissed.\"}"

or/2238093.json

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+"{\"id\": \"2238093\", \"name\": \"GOSS v. NORTHERN PACIFIC RAILWAY CO.\", \"name_abbreviation\": \"Goss v. Northern Pacific Railway Co.\", \"decision_date\": \"1906-10-23\", \"docket_number\": \"\", \"first_page\": \"439\", \"last_page\": \"444\", \"citations\": \"48 Or. 439\", \"volume\": \"48\", \"reporter\": \"Oregon Reports\", \"court\": \"Oregon Supreme Court\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T17:26:29.764406+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"GOSS v. NORTHERN PACIFIC RAILWAY CO.\", \"head_matter\": \"Argued 3 October,\\ndecided 23 October, 1906.\\nGOSS v. NORTHERN PACIFIC RAILWAY CO.\\n87 Pac. 149.\\nNegligence \\u2014 Res Ipsa Loquitur.\\n1. The doctrine o\\u00ed res ipsa loquitur becomes applicable through the circumstances surrounding and accompanying the occurrence causing the injury complained of, rather than by the occurrence itself. Usually the description of the event includes circumstances from which negligence may fairly be inferred; yet there are cases (and this is one) where the occurrence does not justify any inference of negligence.\\nNegligence \\u2014 Evidence Rebutting Presumption.\\n2. Where the evidence of negligence is entirely inferential and the testimony for the defendant is clear and undisputed to the effect that there was no negligence, the plaintiff\\u2019s case is overcome as a matter of law and it becomes the duty of the judge to take the case from the jury.\\nFor Instance: In an action for injuries to a passenger caused by the sudden closing of a railway car door on his hand, any presumption of negligence arising from the accident is overcome by the uncontradieted evidence that the catch provided for the car door was in good repair, and that the train was not operated at a dangerous rate of speed, and hence a verdict was properly directed in favor of defendant.\\nProm Mnltnomab: Arthur L. Frazer, Judge.\\nStatement by Mr. Chief Justice Bean.\\nThis is an action by J. T. Goss against the Northern Pacific Railway Co. for negligence. On August 27, 1903, the plaintiff was a passenger on one of the defendant\\u2019s trains from Kalama to Tacoma. Having occasion during the journey to go to the toilet, he found the room occupied, the door locked and the door from the car to the platform opened back against the toilet door. He started to step out on the platform to await an opportunity to enter the toilet, and while he was passing out put his hand on the door frame to steady himself, when the door suddenly closed, crushing his finger. At the close of the testimony the court directed a verdict for the defendant, and the plaintiff appeals.\\nAffirmed.\\nFor appellant there was a brief over the name of Spencer & Davis, with an oral argument by Mr. Schuyler Colfax Spencer.\\nFor respondent there was a brief over the name of Carey & Mays, with an oral argument by Mr. Arthur Champlin Spencer.\\nNote. \\u2014 With this case read Esberg Cigar Co. v. Portland, 34 Or. 282, a negligence case involving the question res ipsa loquitur, but not cited in the briefs.\\nSee, also, monographic notes: \\u201cPresumption of Negligence From the Happening of an Accident Causing Personal Injuries,\\u201d 113 Am. St. Rep. 986-1031; \\u201cApplicability of the Rule Res Ipsa Loquitur in the Absence of Contractual Relations,\\u201d 6 L. R. A. (N. S.) S00; and \\u201cPresumption of Negligence From Collision Resulting in Injury to Passenger,\\u201d 4 A. & E. Ann. Cas. 11-13. Reporter.\", \"word_count\": \"1911\", \"char_count\": \"10726\", \"text\": \"Mr. Chief Justice Bean\\ndelivered the opinion.\\nWe are of the opinion that the court was right in directing the verdict. The negligence charged is that the catch for the car door was insufficient and out of repair, and that the train was being operated at a high and dangerous rate of speed, which caused the door to become disengaged from the catch by the lurching of the train. The proof does not, in our opinion, sustain either of these allegations. The plaintiff, who is a contractor and had frequently traveled on defendant's trains between Kalama and the Sound and was familiar with its cars and road, testified that at the time he tried the toilet door the car door was opened back and fastened to a hook or catch on the floor, which was of the kind ordinarily used in railway coaches; that the train was running quite fast, he thinks about 50 miles an hour, and was passing around a curve at the time of his injury, and that, in his opinion, the raising of one side of the car while going around the curve was the cause of the door becoming unfastened and shutting against his finger; that he made no examination of the catch to ascertain whether it was out of repair, and does not claim that it was, or that the train was running at an unusual rate of speed, but says that it was running on schedule time and over a good roadbed. The conductor, brakeman, car inspectors and other witnesses for the defendant, who examined the door catch at the time of or immediately after the accident, all testify that it was in good repair, of the latest make and pattern, and such as is ordinarily used on first-class railway coaches. The conductor and engineer both testify that the train was not running at an unusual rate of speed, but was on schedule time, running about 22 miles an hour.\\nThe ease as thus made out by the testimony of the plaintiff and all the other witnesses, was simply the sudden closing of a car door, the fastenings of which were in good repair, on a train moving at the usual rate of speed, and without any proof that it was due to the negligence of the defendant or of any facts from which an inference of negligence could be drawn. The plaintiff claims, however, that proof of the occurrence of the accident and the extent of his injury made a prima facie case in his favor, and cast the burden upon the defendant to show that the accident was without its fault, and that whether such presumption was overcome by the proof was a question of fact for the jury, and not the court. Ordinarily the mere fact of an accident does not per se raise a presumption of negligence, but often negligence may be implied from the facts and circumstances disclosed, in the absence of evidence showing that the accident occurred without negligence: Shearman & Redfield, Negligence (4 ed.), \\u00a7 59; 2 Thomas, Negligence (2 ed.) p. 1093; Jaggard, Torts, 938. Thus, where the evidence shows that the defendant had the exclusive management and control of the thing which caused the injury, or where it appears that the accident occurred through some defect in the vehicle, machinery, roadbed or appliances, the circumstances, if unexplained, may be sufficient to justify a jury in drawing the inference of negligence, under the rule of res ipsa loquitur. This doctrine has been frequently recognized and the principle applied by the courts in a variety of cases, such as accidents from fallen electric light wires (Boyd v. Portland Elec. Co. 40 Or. 126, 66 Pac. 576, 57 L. R. A. 619; s. c. 41 Or. 336, 68 Pac. 810; Chaperon v. Portland Elec. Co. 41 Or. 39, 67 Pac. 928), or from the'falling of a sleeping car berth (Hughes v. Railway Co. 39 Ohio St. 461), or from the derailment of a train upon which the plaintiff was riding (Montgomery, etc. Ry. Co. v. Mallette, 92 Ala. 209, 9 South. 363; Southern Kan. Ry. Co. v. Walsh, 45 Kan. 653, 26 Pac. 45; Feital v. Middlesex Railroad Co. 109 Mass. 398, 12 Am. Rep. 720; Spellman v. Lincoln Rapid Transit. Co. 36 Neb. 890, 55 N. W. 270, 20 L. R. A. 316, 38 Am. St. Rep. 753), or by a train running into a landslide (Gleeson v. Virginia Midl. Ry. Co. 140 U. S. 435, 11 Sup. Ct. 859, 35 L. Ed. 458), or colliding with another train or an obstruction on the track (Louisville & N. R. Co. v. Ritter's Adm'r, 85 Ky. 368, 3 S. W. 591; Smith v. St. Paul City Ry. Co. 32 Minn. 1, 18 N. W. 827, 50 Am. Rep. 550), or by the upsetting of a stage coach, etc.; Stokes v. Saltonstall, 38 U. S. (13 Pet.) 181, (10 L. Ed. 115). See additional cases collated in 3 Am. Neg. Rep. 488. But in nearly if not quite every ease that has come under our notice in which the rule has been applied, it appeared either that the thing causing the injury was under the exclusive control of the defendant, or that the injury resulted from the breaking of machinery, the derailment of ears, or something improper or unsafe in the appliances or the conduct of the business. In other words, that it was not the injury alone from which the negligence was presumed, but the manner and circumstances under which it occurred, which justified the application of the maxim. An unusually clear and learned discussion of the question will be found in the opinion of Mr. Justice Cullen, in Grifen v. Manice, 166 N. Y. 188 (59 N. E. 925, 52 L. R. A. 922, 82 Am. St. Rep. 630).\\nIt is doubtful, therefore, whether the rule can be applied in the case at bar. The car door which caused the injury to the plaintiff was not imd\\u00e9r the exclusive control of the defendant, but was being constantly used by passengers boarding and alight ing from the train and in going from one car to another, and there is no evidence that it was or had been opened or fastened by the defendant's employees, and not by a passenger. Nor is there any testimony that the accident was dne to a defect in the door or the fastening or the unusual movement of the train. There was therefore no proof of any fact or circumstance attending the accident from which an inference of negligence could be drawn. The case as made was similar to that of a passenger injured by the falling of a car window, in which case it has been held that mere proof of the injury raises no presumption of negligence against the defendant: Faulkner v. Boston & M. R. Co. 187 Mass. 254 (72 N. E. 976); Strembel v. Brooklyn Heights R. Co. 96 N. Y. Supp. 903.\\nBut, whatever the rule may be, and assuming that the doctrine applies in a case of this character, the evidence as given on the trial was so clear and convincing that the accident was not due to the negligence charged in the complaint as to completely overcome any presumption which may have arisen from the mere happening of the accident. The evidence had no affirmative signification in establishing negligence on the part of the defendant, but the negligence complained of was left wholly and entirely to inference and presumption from the mere happening of the accident. This presumption, if it existed at all, was overcome by the plaintiff himself, as well as by the other witnesses in the case, and it was therefore not error for the court to direct a verdict in favor of the defendant: Spaulding v. Chicago & N. W. Ry. Co. 33 Wis. 582; Menominee River, etc. Co. v. Milwaukee & N. Ry. Co. 91 Wis. 447 (65 N. W. 176). \\\"Where,\\\" as said by Mr. Justice Wolverton, in Boyd v. Portland Elec. Co. 41 Or. 336, 346 (68 Pac. 810), \\\"the evidence of the plaintiff has affirmative significance in establishing negligence, and the negligence complained of is not left wholly to inference or presumption, the question becomes a matter for the jury, to be determined by the preponderance of evidence.\\\" But, where there is no proof of negligence, except the mere inference of presumption arising from an accident, and this is overcome by positive, undisputed and unimpeachable testimony, there is no question of the preponderance of evidence, and nothing for the jury to decide.\\nJudgment affirmed. Aeeirmed.\"}"

or/2240229.json

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+"{\"id\": \"2240229\", \"name\": \"SCOTT v. CHRISTENSON\", \"name_abbreviation\": \"Scott v. Christenson\", \"decision_date\": \"1907-04-02\", \"docket_number\": \"\", \"first_page\": \"223\", \"last_page\": \"227\", \"citations\": \"49 Or. 223\", \"volume\": \"49\", \"reporter\": \"Oregon Reports\", \"court\": \"Oregon Supreme Court\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T20:51:08.613988+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"SCOTT v. CHRISTENSON.\", \"head_matter\": \"Argued 5 March,\\ndecided 2 April, 1907.\\nSCOTT v. CHRISTENSON.\\n89 Pac. 376.\\nPleadings \\u2014 Aider by Verdict.\\n1. The imperfect allegation or recital in a complaint that two dollars\\nwas paid January 2, 1899, in the allegation that nothing had been paid on the note sued on, \\u201cexcept * * the sum of $2 paid on account thereof,\\nJan. 2, 1899,\\u201d is cured by a general verdict for plaintiff, the issues joined requiring proof thereof.\\nNotes \\u2014 Limitations\\u2014Effect of Part Payment.\\n2. A payment on a joint obligation by one of the obligors or his agent or legal representative revives it against all who were liable thereon, though made without even their knowledge.\\nNotes \\u2014 Competency of Evidence of Payment.\\n3. In an action against several makers of a note, the testimony that one of the makers paid to the witness, who was authorized to receive it, a stated sum at a stated time, is competent, though the witness is not certain which maker made the payment.\\nNotes \\u2014 Limitations\\u2014Indorsement of Part Payment.\\n4. An indorsement on a note, purporting to acknowledge receipt of money, is admissible in evidence in favor of the party making it, to repel the presumption of the bar of limitations, on his testifying that one of the joint makers paid the money to him to be credited on the note.\\nProduction of Letter \\u2014 Presumption as to Ruling of Trial Court.\\n5. The bill of exceptions as to the admission of secondary evidence of the contents of a letter, demand for production of which was made on defendant at the trial, being silent on the subject, it will be presumed that the evidence disclosed that defendants had sufficient time for production of the letter.\\nFrom Marion: George H. Burnett, Judge.\\nAction by Charles Scott, executor of R. H. Scott, deceased, against M. Christenson and another. Judgment for plaintiff, and defendants appeal.\\nAffirmed.\\nFor appellants there was a brief and an oral argument by Mr. Frank Holmes.\\nFor respondent there was a brief with oral arguments by Mr. Charles William Corby and Mr. Henry Johnson Bigger.\", \"word_count\": \"1820\", \"char_count\": \"10439\", \"text\": \"Mr. Justice Moore\\ndelivered the opinion of the court.\\nThis action was commenced in September, 1904, by Charles Scott, as executor of the last will and testament of R. H. Scott, deceased, to recover the remainder alleged to be due from do fendants on their promissory note given to the testator. The complaint alleges the execution of the instrument, the making of a last will by the testator, his death, the probate of the will, the plaintiff's nomination, appointment and qualification as executor, his right to the note, and also avers:\\n\\\"That defendants have not paid said note, nor any part thereof, except the sum of $20.50, as interest thereon, paid on January 19, A. D. 1897, and the sum of $2, paid on account thereof, on \\\"the 2d day of January, A. D. 1899, and there is now due and owing thereon (less the above-mentioned credits), the sum of $74, with interest thereon at the rate of 8 per cent per annum from the 20th day of April, A. D. 1893.\\\"\\nThe answer denied the allegations of the complaint, except the execution of the note and the plaintiff's representative capacity, and alleged a complete discharge of the instrument, and that no payments had been made thereon by the defendants or either of them since August 20, 1896, by reason whereof the action is barred by the statute of limitations. The reply put in issue the allegations of new matter in the answer, and, a trial being had, judgment was rendered against the defendants as demanded in the complaint, and they appeal.\\nIt is contended by defendants' counsel that, as it appears from the face of the plaintiff's primary pleading that the statute of limitations had fully run since the maturity of the note sued upon, it was incumbent upon him to allege in positive terms a payment within six years prior to September, 1904, but, not having done so, the complaint fails to state facts sufficient constitute a cause of action. No demurrer to the complaint was interposed, in the absence of which every reasonable inference deducible from the pleadings will be invoked in favor of a general verdict, which, though it will not supply the omission of a material averment, cures a defective statement, if the issue joined necessarily required proof of the facts imperfectly alleged: Booth v. Moody, 30 Or. 222 (46 Pac. 884); Savage v. Savage, 36 Or. 268 (59 Pac. 461); Ferguson v. Reiger, 43 Or. 505 (73 Pac. 1040). It will be remembered that the complaint states that the defendants had not paid the note or any part thereof, \\\"except the sum of $2, paid on account thereof, on the ,2d day of January, A. D. 1899.\\\" The quoted words indicate a payment within six years prior to the commencement of the action, and if the declaration be considered in the nature of a recital instead of a positive averment, if the fact alleged was established in the manner pointed out in a former appeal of this cause, the statement is sufficient, in our opinion: Scott v. Christenson, 46 Or. 417 (80 Pac. 731).\\nThe plaintiff, as a witness in his own behalf, after refreshing his memory by referring to the indorsements made on the note in question, was directed to state what payments had thus been made, and, over objection and exceptions, stated, inter alia, that on January 2, 1899, one of the defendants, whom he thought to be H. Christenson, but was not sure, paid him at Woodburn $2 to be credited on the note. The defendants5 counsel thereupon moved to strike out such testimony on the ground that, as there were two joint makers of the note, it was incumbent on plaintiff, in order to prevent the statute of limitations from running against an action on the note, definitely to prove which one of the defendants made the alleged payment, but, the motion having been denied, an exception was saved. The rule is settled in this state that a payment of a part of a joint obligation by a maker thereof or by his agent or legal representative revives it as against all persons who were liable thereon, though made without their knowledge or consent: Partlow v. Singer, 2 Or. 307; Sutherlin v. Roberts, 4 Or. 378; Dundee Invest. Co. v. Horner, 30 Or. 558 (48 Pac. 175); Smith's Estate, 43 Or. 595 (73 Pac. 336, 75 Pac. 133); Sheak v. Wilbur, 48 Or. 376 (86 Pac. 375).\\nIt was stated by counsel for the parties at the trial in this court that the defendants herein are brothers. The bill of exceptions does not disclose whether or not there exists any similarity of countenance, bearing or manner between the defendants, but by reason of their intimate relation it is possible that the plaintiff could not recognize one from the other, yet he may have been able to distinguish them from all other persons. If such is the case, his testimony was competent for their identification, and a payment by either to be indorsed on the note at his request was sufficient to extend the statute of limitations, which had not run when the alleged payment was made. As the consanguinity of the defendants may have produced a similarity in their appearance, and such resemblance is not negatived in the bill of exceptions, the plaintiff's testimony was sufficient to entitle the matter to be submitted to the jury.\\nThe payment of $2, at the time and in the manner stated, having been testified to by plaintiff as indicated, the promissory note, and the indorsement of that sum thereon, were, over objection and exception, received in evidence, and it is insisted by defendants' counsel that an error was thereby committed. An indorsement purporting to acknowledge the receipt of money or the value of property, made on a promissory note by the holder thereof, without the knowledge of the maker, is not admissible in evidence in favor of the party making the indorsement so \\u00e1s to repel the presumption of payment arising from the lapse of years: Roseboom v. Billington, 17 Johns. 182; Whitney v. Bigelow, 4 Pick. 109. When, however, a payment is indorsed on a note by the holder at the request of the payor, proof of such fact is sufficient to remove the bar of the statute of limit\\u00e1tions (Sibley v. Phelps, 6 Cush. 172), and the note and the indorsement are thereupon admissible in evidence, on the theorj that, if the jury believe the payment was made and indorsed in the manner indicated, such memoranda enable them to determine the amount due on the commercial paper. The plaintiff having testified that the payment of $2 was made January 2, 1899, by one of the defendants, to be credited on the note, no error was committed in admitting it and the indorsement in evidence.\\nThe plaintiff, during the progress of his case in chief, served upon the defendants, in open court, a notice to produce a letter purporting to have been written by him to them, identifying it by its date, the place from which it was sent, and to which it was addressed, and upon their failure to comply therewith he testified that on February 7, 1898, he mailed' from Woodburn, Oregon, the letter called for in a postage-prepaid envelope, addressed to the defendants at Silverton, Oregon, which envelope had printed thereon a request to return it to the plaintiff, at the city from which it was sent, if it was not delivered in 10 days, and that the letter was never returned to him. Thereupon a letterpress copy of the epistle mentioned was, over objection and exception, admitted in evidence. It is contended by defendants-' counsel that his clients did not have sufficient time in which to produce the letter called for, and, this being so, an error was committed in admitting secondary evidence thereof. A party is entitled to a reasonable time to comply with a request to produce documents which are sought by his adversary to be offered in evidence. What is proper time, however, depends upon the ability of the party to bring forward the exhibit desired. If it appears that the paper is in his possession or is easy of access, a demand therefor, made at the trial, is sufficient: Griffin v. Sheffield, 38 Miss. 359 (77 Am. Dec. 646); Morrison v. Whiteside, 17 Md. 452 (79 Am. Dec. 661). The bill of exceptions is silent upon this question, and, as it does not purport to contain all the testimony given at the trial, it must be presumed that the evidence disclosed that the defendants could have complied with the request, but, not having done so, no error was committed as alleged.\\nFrom these considerations it follows that the judgment should be affirmed, and it is so ordered. Arrirmed.\"}"

or/2258976.json

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+"{\"id\": \"2258976\", \"name\": \"HANTHORN v. OLIVER\", \"name_abbreviation\": \"Hanthorn v. Oliver\", \"decision_date\": \"1897-12-27\", \"docket_number\": \"\", \"first_page\": \"57\", \"last_page\": \"64\", \"citations\": \"32 Or. 57\", \"volume\": \"32\", \"reporter\": \"Oregon Reports\", \"court\": \"Oregon Supreme Court\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T20:20:19.519739+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"HANTHORN v. OLIVER.\", \"head_matter\": \"Argued December 2;\\ndecided December 27, 1897.\\nHANTHORN v. OLIVER.\\n[51 Pac. 440.]\\n\\\"Vacating Judgment by Default. \\u2014 A defendant showed that he did not comprehend the English language perfectly; that he misunderstood a notification from his attorney, received on Monday that his case would be tried on Tuesday, and believed it to mean Tuesday of the next week, at which date he was on hand ready for trial, only to learn that judgment had gone against him the week before; that he had a good defense aside from the statute of limitations which had not been pleaded, although available; that he applied for a new trial on terms on the day he learned of his mistake. Be Id, that a refusal to set aside the default and judgment on terms was an abuse of discretion.\\nDiscretion of Court \\u2014 Abuse. \\u2014 The discretion resting in a trial court to grant or refuse an application to open a default is not the right to do as it may please the judge presiding, but is rather a power that should be exercised with discriminating judgment, and so as to best accomplish substantial justice: Thompson v. Connell, 31 Or. 231, approved.\\nFrom Clatsop: Thomas A. McBride, Judge.\\nThis action was brought on the twenty-second of September, 1894, to recover the sum of $698.48 for goods alleged to have been sold and money-loaned by the plaintiff\\u2019s assignor to the defendant in the month o'f October, 1876, and the complaint avers, for the purpose of taking the case out of the statute of limitations, that the defendant was and had been a non-resident of the state since August, 15, 1877. On the twenty-fifth of September the defendant answered, denying all the material allegations of the complaint except the fact of his non-residence, and affirmatively alleging that he had fully paid for all goods purchased by him of the-plaintiff\\u2019s assignor. A reply having been filed, the cause was, by mutual consent, continued from time to time until September 16, 1895, when it was set. for trial on Tuesday, the twenty-fourth -of the month. On Monday, the day before the time fixed for the hearing, the defendant was notified by his-counsel that the cause had been set for \\u201cTuesday\\u201d1 but, being a foreigner, and not understanding the English language perfectly, supposed that it was. Tuesday of the following week, and not the next, day, and, residing about fifteen miles from the county seat, did not appear at the time set, and the cause was tried, and judgment rendered against him for the amount demanded in the complaint, together with $1,061.09 interest, aggregating $1,758.57 and costs, without his appearance, either in person or by counsel. On Tuesday, the first day of October, \\u2014 the day he supposed the cause was to be tried,\\u2014 he went over to Astoria, to attend the trial, and upon his arrival found that judgment had already gone against him. He thereupon immedi ately filed a motion to vacate and set it aside on the ground of excusable mistake, accompanied by-affidavit showing that he had misunderstood the time set for the trial, and that such mistake occurred as above detailed; that he had a meritorious, defense to the action, as stated in his answer; and also that he was and had been a resident of this state continuously since the alleged purchase of the goods mentioned and referred to in the complaint; and that such action was, in fact, barred by the statute of limitations. A counter affidavit was filed by the plaintiff\\u2019s attorney to the effect that the action was commenced in August, 1894, and issue joined in September following; that for the convenience of the defendant, and to enable him to obtain the deposition of a witness, the plaintiff had consented to countenances from time to time; that on the sixteenth of September, 1895, the court, on its-own motion, set the cause for hearing on Tuesday,, the twenty-fourth, and defendant\\u2019s attorney was advised thereof; that plaintiff was present with bis, counsel and witnesses at the time designated, and that defendant\\u2019s counsel, being present in court, stated that he had notified defendant, but that he had failed to appear, whereupon the court ordered the cause to proceed without him; that plaintiff was. obliged to go to great expense in preparing for the trial and procuring the attendance of witnesses from the City of Portland, and that the cause had been long delayed on account of, and at the request of, defendant\\u2019s counsel. The defendant thereupon offered in writing to pay all the costs of the action. up to date, and to proceed\\u2019 to trial at any designated day during the then term of court as a condition, or as terms for setting aside the judgment. The court denied the motion, and defendant appeals.\\nReversed.\\nFor appellant there was an oral argument by Messrs. John S. Smith and F. D. Winton.\\nFor respondent there was an oral argument by Mr. Frank J. Taylor.\", \"word_count\": \"2069\", \"char_count\": \"11786\", \"text\": \"Mr. Justice Bean,\\nhaving stated the facts, delivered the opinion of the court.\\nUpon the facts disclosed by the record, we are of the opinion that the defendant was entitled to have the judgment opened up, and to make his defense, and that the denial by the trial court of his motion for that purpose is reversible error. The case presented is not one of negligence or omission on the part of either defendant or his counsel, but is an excusable mistake, growing out of an honest misunderstanding of the defendant as to the time of trial. His counsel told him on Monday that the case was set for Tuesday (meaning the following day), but he understood it to be Tuesday of the next week. This was quite a natural mit^uke under the circumstances, and to hold that on account thereof he should have no relief from the judgment rendered against him, but must lose the benefit of a good and meritorious defense, appears to us to establish, an unnecessarily harsh rule of practice. That he intended to make a defense is obvious from the fact that he was on hand, ready for trial, at the time he supposed the case was to be heard, and immediately applied to have the judgment vacated on terms. No laches or unnecessary delay can be justly imputed to him, and there is nothing in the record to indicate that he was not proceeding in the utmost good faith, or that plaintiff would have been seriously injured by vacating the judgment, and allowing the case to be tried on its merits. The action itself is brought upon a demand which appears, from the undisputed affidavit filed by the defendant, to have been long since barred by the statute of limitations, and, although he does not place his defense upon that ground, yet it furnishes a very cogent reason why he should be allowed the benefit of a trial upon the issue as joined. If the plaintiff's claim is just, he cannot be wronged by opening up the judgment; but, if it is unjust, a very grievous injury will be done the defendant by allowing it to stand. Under such a state of facts, and where, as in the case at bar, the application is ' made soon after the default, and no serious delay or injury could have resulted to the plaintiff, the defendant should, in our opinion, have been given an opportunity to defend upon such terms as the trial court might have deemed proper.\\nIt is true, as claimed by plaintiff's counsel, that an application to be relieved from a judgment under section 102 of the statute (Hill's Annotated Laws), is addressed to the sound discretion of the trial court, and that its orders in the premises will not be disturbed on, appeal unless there has been an abuse thereof. But, as said by Mr. Justice Wolverton, in Thompson v. Connell, 31 Or. (48 Pac. 468): \\\"The discretion here spoken of is. 'an impartial discretion, guided and controlled in its execution by fixed legal principles;' 'a legal discretion, to be exercised in conformity with the spirit of the law, and in a manner to' subserve, and not to defeat, the ends of substantial justice'; and for a . manifest abuse thereof it is reviewable by an appellate jurisdiction,\\\" \\u2014 citing authorities. And \\\"applications of this character,\\\" says the supreme court of California in Watson v. Railroad Company, 41 Cal. 20, \\\" are addressed to the legal discretion of the court in which the default has occurred, and should be disposed of by it as substantial justice may seem to require. Each case must be determined by its own peculiar facts, for perhaps no two cases will be found to present the same circumstances for consideration. As a general rule, however, in case where, as here, the application is made so immediately after default entered as that no considerable delay to the plaintiff is to be occasioned by permitting a defense on the merits, the court ought to incline to relieve. The exercise of the mere discretion of the court ought to tend in a reasonable degree, at least, to bring about a judgment on the very merits of the case; and when the circumstances are such as to lead the court to hesitate upon the motion to open the default, it is better, as a general rule, that the doubt should be resolved in favor of the application. In connection with its allowance, terms and conditions ought generally to be imposed upon the party in default, which, of course, should be more or less severe, as the particular circumstances would seem to warrant.\\\" This seems to be a very clear and satisfactory statement of the rule: 6 Enc. Pl. & Prac., 165 et seq., and note; 1 Black on Judgments, \\u00a7 354; 1 Freeman on Judgments, \\u00a7 106; and a note to Burnham v. Hays, 58 Am. Dec. 389.\\nA reference to some of the adjudged cases will show its application. Thus, where the defendant's attorney, being about to remove from town, called at defendant's office, and left the papers in a case then pending with his bookkeeper, with instructions to tell the defendant that he would have to get another attorney on account of his departure, but the bookkeeper, being busy, and supposing the papers related to another matter, failed to give the message, and the case was set for trial, and judgment rendered therein without either the defendant or his attorney being present, it was held that the refusal of the trial court to set it aside was reversible error. Grady v. Donahoo, 108 Cal. 211 (41 Pac. 41). In Dodge v. Ridenour, 62 Cal. 263, judgment was rendered against the defendant in the absence of his counsel, who forgot the date set for the trial, and the order of the court overruling a motion to set the judgment aside was reversed by the appellate court. So, also, in Reidy v. Scott, 53 Cal. 69, it was held that a mistake of the defendant as to the day he was served with process was a sufficient excuse for failing to answer within the time required, he haying immediately applied to set aside the default; and that it was error for the court below to deny the motion. And again in Pearson v. Drobaz Fishing Company, 99 Cal. 425 (34 Pac. 76), the order was reversed because the court refused to set aside a judgment on a showing that it was obtained through a mistaken belief of counsel that the case would not be reached on the day it was set for hearing, because of other cases ahead of it on the calendar. So, also, where a defendant, immediately after service of process, commenced making preparations for his defense, but, owing to a multitude of pressing engagements, which shortly afterwards called him away from home, and out of the state, he mistook the day when his answer was due, and defaulted, it was held that the order of the circuit court in refusing to open up the default, and allow him to answer, was erroneous. Johnson v. Eldred, 13 Wis. 486. Many other cases could be cited, but these are sufficient. The order overruling the motion will be reversed, and the cause remanded to the court below, with directions to allow it, and set aside the judgment, upon such terms as may seem just and equitable.\\nReversed.\"}"

or/2263231.json

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+"{\"id\": \"2263231\", \"name\": \"CROW v. CROW\", \"name_abbreviation\": \"Crow v. Crow\", \"decision_date\": \"1896-07-27\", \"docket_number\": \"\", \"first_page\": \"392\", \"last_page\": \"395\", \"citations\": \"29 Or. 392\", \"volume\": \"29\", \"reporter\": \"Oregon Reports\", \"court\": \"Oregon Supreme Court\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-11T00:22:29.086472+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"CROW v. CROW.\", \"head_matter\": \"Decided July 27, 1896.\\nCROW v. CROW.\\n[45 Pac. 761.]\\nDivoboe \\u2014 Peesonau Indignities \\u2014 Code, \\u00a7 495. \\u2014 Under section 495, Hill\\u2019s Code, making \\u201cpersonal indignities rendering life burdensome\\u201d ground for divorce, proof that a woman shown by the evidence to have been virtuous, and to have been a good and dutiful wife, was charged by her husband, in the presence of others, with having committed adultery, is sufficient to entitle her to a divorce as a matter of law, without special proof of the degree or kind of burdensomeness to her life thereby caused: Smith v. Smith, 8 Or. 100; McMahan v. McMahan, 9 Or. 525; Eggerth v. Eggerth, 15 Or. 626; and, Herberger v. Herberger, 16 Or. 327, approved and followed.\\nFrom Linn: George H. Burnett, Judge.\\nThis is a suit for divorce, brought by the wife on the ground of personal indignities rendering her life burdensome. The issues being joined, the prosecuting attorney, upon the failure of the . defendant, appeared for the state, whereupon the plaintiff introduced her evidence, from which the court found all the material facts in her favor, except that she offered no testimony tending to show that her life had been or was rendered burdensome by any conduct of the defendant, and dismissed the suit, from which decree the plaintiff appeals.\\nReversed.\\nFor appellant there was a brief and an oral argument by Mr. N. M. Newport.\\nNo appearance for respondent.\", \"word_count\": \"911\", \"char_count\": \"5312\", \"text\": \"Per Curiam.\\nThe only question presented for consideration is whether the evidence is sufficient to justify a more favorable finding than that of which the plaintiff complains. The record conclusively shows that the defendant, in the presence and hearing of another, falsely charged the plaintiff with the commission of the crime of adultery with a person whom he named, and, upon her denial of the accusation, called her a liar and other opprobrious names and epithets, telling her she was not a reputable person, and ought to live in a house of ill fame, where she could be among her equals. Thereupon she informed the defendant that she could not live with any one who would falsely accuse her of the commission of such a crime, and immediately deserted him. The plaintiff, as a witness in her own behalf, testifies that these accusations were false, and made for the purpose of vexing and annoying her, and that they did annoy her very much, and on cross-examination says they made her miserable. The evidence does not show the degree or extent of the misery suffered by the plaintiff as a result of the defendant's malicious and false charge, but this may be inferred from her conduct and the other facts and circumstances of the case. It has been repeatedly held in this state that if either party to the marriage contract falsely charge the other with the commission of the crime of adultery, such false accusation is a sufficient cause for a divorce: Smith v. Smith, 8 Or. 100; McMahan v. McMahan, 9 Or. 525; Eggerth v. Eggerth, 15 Or. 626 (16 Pac. 650); Herberger v. Herberger, 16 Or. 327 (14 Pac. 70). The statute authorizes a dissolution of the marriage contract at the suit of the injured party on the ground. inter alia, of cruel and inhuman treatment or per sonal indignities rendering life burdensome: Hill's Code, \\u00a7 495. It is possible that the false charge of the commission of the crime of adultery against a woman may not be such a personal indignity as to render her life burdensome, but in conceding that such an accusation can be made in the presence and hearing of others without producing this result, it must be predicated on the assumption either that the party so accused does not possess sufficient intelligence to comprehend the nature of the charge, or that her conduct indicates a want of moral character, if not a lack of virtue.\\nThe evidence shows that the plaintiff was virtuous, and the court found that during her married life she had always behaved toward the defendant as a good and dutiful wife should in all respects. This finding rebuts any inference of a want of moral character or lack of virtue, and this being so, the false accusation, as a conclusion of law, must necessarily have cast a shadow over her life rendering it burdensome. To charge a woman, in the presence and hearing of others, with the commission of the crime of adultery, is to render her subject to the gross insults of lustful men who may hear and believe the rumor, which, whether true or false, tends to rob her of her good name, alienate her friends and acquaintances, and deprive her of their society and companionship. Every woman of ordinary intelligence understands the force and effect of such accusations, even when falsely made by her enemies, and in consequence thereof her life must necessarily be rendered burdensome, but how much greater must be the degree of misery suffered by her when such a charge is falsely made by one who has solemnly promised to love, cherish, and protect her. It must be presumed that the plaintiff was sane, and therefore understood the nature and effect of the accusation made against her, and, being virtuous, it follows, as a conclusion of law, that her life was rendered burdensome in consequence of the defendant's conduct. The decree is reversed, and one will be entered here dissolving the marriage contract existing, between the parties. Reversed.\"}"

or/2264334.json

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+"{\"id\": \"2264334\", \"name\": \"BENNETT v. MINOTT\", \"name_abbreviation\": \"Bennett v. Minott\", \"decision_date\": \"1896-03-23\", \"docket_number\": \"\", \"first_page\": \"339\", \"last_page\": \"350\", \"citations\": \"28 Or. 339\", \"volume\": \"28\", \"reporter\": \"Oregon Reports\", \"court\": \"Oregon Supreme Court\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T23:03:31.916699+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"BENNETT v. MINOTT.\", \"head_matter\": \"Decided March 23, 1896;\\nrehearing denied.\\nBENNETT v. MINOTT.\\n[39 Pac. 997; 44 Pac. 283.]\\n1. Service op Notice op Appeal \\u2014 Presumption.\\u2014Where nothing appears in the record to show the residence of respondent\\u2019s attorney it will be presumed that he resides iu the county where the trial was had, (Roy v. Horsley, 6 Or. 270, approved and followed,) and that his admission of service of a notice of appeal was there made.\\n2. Adverse Parties \\u2014 Service op Notice op Appeal.\\u2014 The grantor in a conveyance of property claimed to be fraudulent as to creditors is not a. necessary party to a suit to set aside such conveyance, and, as his interest cannot be affected by the result, he is not an \\u201c adverse party,\\u201d and the notice of appeal need not be served on him: The Victorian, 24 Or. 141, cited.\\n3. Pleading \\u2014 Waiver op Objections. \\u2014 An objection to a complaint for uncertainty or indeiiniteness comes too late after judgment.\\n4. Creditor\\u2019s Bill \\u2014 Judgment not Necessary.\\u2014 A creditor need not reduce his claim to judgment before filing a creditor\\u2019s bill to reach assets of his debtor which have been transferred in fraud of creditors, a lien by attachment being sufficient: Dawson v. Sims, 14 Or. 501, approved and followed.\\n5. Creditor\\u2019s Bill \\u2014 Fraudulent Transfer.\\u2014 Where a debtor, for the purpose of hindering and delaying creditors, organizes a corporation and transfers to it all his assets, he himself being the owner of practically all the corporate stock, and continuing the business the same after as before the incorporation, using the proceeds for his own ben efit, equity will set aside sucli transfer at the instance of creditors, notwithstanding the incorporation is valid, and the corporate stock subscribed by the debtor is subject to sale under execution. Under such circumstances a court of equity will look beyond the legal forms, and decide the case on the rights of the parties.\\nAppeal from Coos: J. C. Fullerton, Judge.\\nThis is a proceeding by Sandford Bennett in the nature of a creditor\\u2019s bill to subject to the payment of his claim certain property alleged to have been transferred by the defendant T. S. Minott to his codefendants the Coos Bay Hardware Company, a corporation, and to Lizzie H. Minott, for the purpose of hindering, delaying,' and defrauding creditors. From the pleadings and evidence it appears that from the first day of August, eighteen hundred and ninety, to the eleventh day of June, eighteen hundred and ninety-two, Minott was engaged in the hardware business at Marshfield, in this state, and during that time became largely indebted to plaintiff and his assignors, and .to defendants Hester, May and Company, D. M. Osborne and Company, and other wholesale merchants, for goods sold and delivered to him. While being pressed by his creditors, he, on the latter date, caused the formation of said corporation, with a nominal capital of thirty thousand dollars, divided into three hundred shares of the par value of one hundred dollars each, of which he subscribed for one hundred and twenty shares, his wife for forty, and his attorney and a friend for one each. The corporation was subsequently organized, and Minott was elected president, general manager, and treasurer, under a contract to serve for one year at a salary of one hundred and fifty dollars per month. He thereupon assigned and transferred to the corporation his business and stock of hardware, which was substantially all the property he owned not ex erupt from execution, at a valuation of about twelve thousand dollars, in payment for the shares of stock subscribed by him. In this transaction he acted both for himself as an individual and for the corporation of which he was president, general manager, and treasurer, and substantially the owner. About thirty days after the formation of the corporation he assigned and transferred to his wife, the defendant Lizzie H. Minott, all his shares in the corporation, except nine, in payment of a debt he claimed to owe her. He thereafter proceeded to cLo business substantially as before, but under the name of the corporation, selling and disposing of the goods, and applying the proceeds thereof to his own individual use. His creditors being unable to effect a satisfactory settlement with him, the defendants Hexter, May and Company, in August, eighteen hundred and ninety-two, attached a part of the stock of goods transferred by Minott to the hardware company, and on September sixth another part was attached, by the defendants B. M. Osborne and Company, each of whom afterwards recovered judgment against Minott, containing an order of sale of the attached property. On September twenty-second, eighteen hundred and ninety-two, Baker and Hamilton duly recovered a judgment against him for two hundred and thirty-one dollars and ninety-five cents, upon which an execution was subsequently issued and \\\"returned nulla bona. On October twenty-second, plaintiff, for himself and as assignee of a large number of the other creditors, commenced an action and had the entire stock of goods in the possession of the hardware company attached as the property of Minott. Based upon said attachment and the judgment in favor of Baker and Hamilton, which was duly assigned to him. the plaintiff instituted this suit to set aside the transfer of the stock of goods from Minott to the hardware company, and to subject it to the payment of his demands, together with two lots in Dean\\u2019s Addition to Marshfield, which had previously been purchased by Minott, and upon his direction conveyed to his wife. A receiver was appointed, and the merchandise sold by him under the order of the court, and the proceeds thereof now await distribution. The case was after-wards tried, and a decree rendered adjudging the sale of the stock of goods by Minott to the corporation to be void as to creditors, but holding that there was no fraud as to plaintiff in the matter of the purchase of the lots in Dean\\u2019s Addition, and decreeing that the money in the hands of the receiver be applied,- \\u2014 first, to satisfy the costs and expenses of the suit; second, to the discharge of the judgments of Tlexter, May and Company and D. M. Osborne and Company; third, to the satisfaction of the judgment recovered by the plaintiff in the action wherein he caused said goods to be attached; and, fourth, to the payment of the judgments in favor of the Bridge and Beach Manufacturing Company and Baker and Hamilton. From this decree the hardware company and the plaintiff both appeal, but Minott and his wife are not made parties.\\nAffirmed.\\nFor appellant there was a brief and an oral argument by Mr. William R. Willis.\\nFor respondents there were briefs by Messrs. Cox, Cotton, Teal and Minor, J. W. Bennett, and D. L, Watson, with oral arguments by Messrs. Bennett and Wirt Minor\\u201e\\n[39 Pac. 997.]\", \"word_count\": \"3369\", \"char_count\": \"19539\", \"text\": \"On Motion to Dismiss Appeal.\\nPer Curiam.\\nThe notice of appeal was filed August thirtieth, eighteen hundred and ninety-four, and the proof of service indorsed thereon is as follows: \\\"Due service and receipt of a copy hereof admitted after filing this twenty-eighth day of August, eighteen hundred and -ninety-four. J. W. Bennett, attorney for plaintiff.\\\" It is contended (1) that the indorsement does not show the place of service; and (2) that T. S. Minott and Lizzie H. Minott are adverse and therefore necessary parties to the appeal.\\nThe service of a notice of appeal may be made either upon the party or upon his attorney of record residing in the county where the trial was had; but when the attorney resides outside of such county the service can be made only upon the adverse party: Lindley v. Wallis, 2 Or. 203; Rees v. Rees, 7 Or. 78; Lewis and Dryden Printing Company v. Reeves, 26 Or. 445 (38 Pac. 622). The proof of service of a notice of appeal may be made by the sheriff of the county, (Hill's Code, \\u00a7 54, 527,) or by the written admission of the adverse party, but in case of service by the latter method, the admission must state the time and place of service, (Code, \\u00a761,) which must be indorsed on the notice \\u2022when filed, or the appeal is not perfected: Briney v. Starr, 6 Or. 207. The admission of the service of a summons must show the time and place of service, otherwise no advantage could be taken of the defendant's default in failing to answer. But the place of service of a notice of appeal is, in general, not required to be specifically set forth, although it is otherwise as to time: Elliott on Appellate Procedure, \\u00a7 179. The transcript shows that J. W. Bennett was the attorney for the plaintiff in the trial of the suit in Coos County, and nothing appearing to the contrary, it will be presumed that he was a resident of the county in which he appeared as counsel, (Roy v. Horsley, 6 Or. 270,) and that he acknowledged service of the notice of appeal where the papers show the venue to be laid: Elliott on Appellate Procedure, \\u00a7 179. The place of service not having been stated, it will, therefore, be presumed to have been in Coos County.\\nThe defendants, T. S. Minott \\u2022 and Lizzie H. Minott, though proper were not necessary parties to the suit. Neither of them has any interest either legal or equitable in the property, and neither could be prejudiced by the decree which the plaintiff seeks to obtain: Blanc v. Paymaster Mining Company, 95 Cal. 524 (29 Am. St. Rep. 149, 30 Pac. 765); Fox v. Moyer, 54 N. Y. 130; Potter v. Phillips, 44 Iowa, 353; Coffey v. Nor-wood, 81 Ala. 512 (8 So. 199); United States v. Church of Latter-Day Saints, 5 Utah, 538 (18 Pac. 35); Bailey v. Inglee, 2 Paige, 278; Pfister v. Dascey, 65 Cal. 403 (4 Pac. 393). In a suit to set aside a deed alleged to have been fraudulently executed the plaintiff may, though not necessary, elect to make the grantors thereof parties, and having done so a demurrer will not lie for misjoinder: Pfister v. Dascey, 65 Cal. 403 (4 Pac. 393). The defendants T. S. Minott and Lizzie H. Minott not being necessary parties their interests cannot be adverse to or in conflict with those of the appellant: The Victorian, 24 Or. 121 (41 Am. St. Rep. 838, 32.Pac. 1040). As between them and the Coos Bay Hardware Company, the transfer of the stock of goods was complete, and none but their creditors could question the transaction. It follows that the motion to dismiss the appeal must be denied, and it is so ordered.\\nOverruled.\\n[44 Pac. 283.]\"}"

or/2277899.json

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+"{\"id\": \"2277899\", \"name\": \"N. P. ATTERBERRY, Respondent, v. THE PORTLAND & WILLAMETTE VALLEY R'Y CO., Appellant\", \"name_abbreviation\": \"Atterberry v. Portland & Willamette Valley R'y Co.\", \"decision_date\": \"1889-10-21\", \"docket_number\": \"\", \"first_page\": \"85\", \"last_page\": \"86\", \"citations\": \"18 Or. 85\", \"volume\": \"18\", \"reporter\": \"Oregon Reports\", \"court\": \"Oregon Supreme Court\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T23:28:49.538657+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"N. P. ATTERBERRY, Respondent, v. THE PORTLAND & WILLAMETTE VALLEY R'Y CO., Appellant.\", \"head_matter\": \"[Filed October 21, 1889.]\\nN. P. ATTERBERRY, Respondent, v. THE PORTLAND & WILLAMETTE VALLEY R'Y CO., Appellant.\\nWhere an appellant seeks to reverse the judgment of a circuit court, upon the ground that the respondent failed to prove a case sufficient to he submitted to the jury, he must make up a bill of exceptions containing all the evidence given in the case, and have attached thereto a statement or certificate to the effect that it contains all tbe evidence, and bring the same to this court with the transcript.\\nAppeal from a judgment of the circuit court for the county of Multnomah, entered in favor of the respondent and against the appellant upon the verdict of a jury.\\nThe appellant is a railroad corporation, engaged in the transportation of freight and passengers upon its line of railroad in this State. The action was for personal injuries received by tbe respondent while a passenger upon tbe appellant\\u2019s railroad from Smock\\u2019s station to Portland, in consequence- of its cars being thrown from tbe track. Tbe respondent alleged in bis complaint that tbe casualty occurred on account of tbe negligence and mismanagement of tbe appellant\\u2019s agents in attaching to and making a part of its train of cars, two cars in front of tbe passenger-car thereof, in which tbe respondent was, being conveyed, filled with live cattle; that tbe said cattle-cars were so constructed that tbe boxes or cars containing tbe cattle were so much wider than tbe tracks of said railroad as to render it extremely unsafe to attach them so loaded with live cattle to a train carrying passengers, on aecomit of tbe liability of tbe said cattle-cars to turn over, by reason of tbe cattle crowding to one side thereof, or being thrown against one side of tbe cars when passing around curves of tbe track; and said cattle were so carelessly and negligently loaded in said cars by tbe appellant as to permit them to crowd to one side of tbe cars, and by their weight throw tbe cars off tbe track; and that by reason of tbe premises said cars, together with tbe car in which tbe respondent was riding, were thrown from tbe track to tbe ground, a distance of nearly twenty feet; that respondent was thereby permanently injured, to bis damage, etc. Tbe appellant denied all tbe material allegations of tbe com plaint. The jury returned a verdict for tlie respondeut in the sum of $800.\\nG. J. McDougall, for Appellant.\\nRaleigh Stott, for Respondent.\", \"word_count\": \"764\", \"char_count\": \"4385\", \"text\": \"Thayer, C. J.\\nThe appellant seeks to reverse tbe judgment in this case upon the ground tbat tbe respondent failed to prove a cause sufficient to be submitted to tbe jury. Tbe counsel for tbe appellant, after tbe evidence for tbe respondent was given at tbe trial, moved for a judgment of nonsuit, wbicb tbe circuit court overruled. He thereupon submitted evidence on tbe part of tbe appellant, and after doing so renewed bis motion for a nonsuit, wbicb tbe said court again overruled. He now brings tbe case to this court, and insists tbat the circuit court committed error in its said rulings. He has brought here what purports to be tbe evidence in the case, but whether it is all tbe evidence does not appear by any statement or certificate. It may be, and very likely is, tbe substance of all tbe evidence given upon tbe trial; but it has been repeatedly held tbat, unless tbe bill of exceptions contains an affirmative statement tbat such is tbe fact, this court will not consider it in determining whether or not it is sufficient to support tbe verdict. Tbe court will not infer tbat tbe evidence contained' in tbe bill of exceptions is all tbe evidence given at tbe trial, unless tbe bill of exceptions contains a positive statement to that effect. This rule is universally adhered to, and is founded, I suppose, upon tbe principle tbat tbe judgment of a court is evidence of its own rectitude; tbat the fact of its rendition creates a presumption in its favor tbat it would not have been given unless all tbe material facts in tbe case entitling tbe party to a recovery bad been proved. Such presumption is conclusive in a collateral action, and cannot be overcome in a direct proceeding except by a positive statement in tbe bill of exceptions to tbe effect tbat it contains all tbe evidence given upon tbe trial. Tbe point is conclusive against tbe appellant's right to a reversal of tbe judgment herein, and consequently it must be affirmed.\"}"

or/2286160.json

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+"{\"id\": \"2286160\", \"name\": \"J. A. CRAWFORD, L. FLINN, and B. BRENNER v. JOHN BEARD and AMBROSE BEARD\", \"name_abbreviation\": \"Crawford v. Beard\", \"decision_date\": \"1885-11-09\", \"docket_number\": \"\", \"first_page\": \"447\", \"last_page\": \"459\", \"citations\": \"12 Or. 447\", \"volume\": \"12\", \"reporter\": \"Oregon Reports\", \"court\": \"Oregon Supreme Court\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T23:05:43.167553+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"J. A. CRAWFORD, L. FLINN, and B. BRENNER v. JOHN BEARD and AMBROSE BEARD.\", \"head_matter\": \"[Filed November 9, 1885.]\\nJ. A. CRAWFORD, L. FLINN, and B. BRENNER v. JOHN BEARD and AMBROSE BEARD.\\nEvidence\\u2014Admission not Connected with Thee ob Possession.\\u2014In a suit to set aside a deed as in fraud of creditors, evidence of statements and admissions made by the grantor long after the execution of the deed, and unconnected with possession of the property, are immaterial.\\nJudgment\\u2014Entby oe, by Cleem, by Deeault \\u2014 (Waldo, C. J., dissenting).\\u2014 The statute authorizing the clerk to enter judgment by default or upon confession is not unconstitutional.\\nConstitutional Law.\\u2014When a statute has been long recognized as binding, and important affairs of the community have been transacted in accordance with its provisions, it should not he disturbed unless it unequivocally conflicts with the organic law.\\nEbaudulent Conveyance\\u2014Cbeditoes.\\u2014When a person who has contracted for the purchase of machinery conveys away his property before such machinery is delivered, his creditor may show that such conveyance was made with intent to defraud him.\\nId. \\u2014 Subsequent Cbeditoes.\\u2014A subsequent creditor cannot attack such a conveyance except by showing that the grantor, at the time he made it, had in view the creation of such debt, and intended to defraud the creditor thereof.\\nId.\\u2014Ebaudulent Intent\\u2014Peesumption.\\u2014When the necessary result of a debtor\\u2019s act is to place his property beyond the reach of legal process, it may be presumed that it was done with a fraudulent intent; hut when the act is regular and fair upon its face the intent must he gathered from the surroundings.\\nId.\\u2014Voidable Deed may Stand foe Indemnity.\\u2014A deed obtained under suspicious or inequitable circumstances, or which is only constructively fraudulent, may he permitted to stand as security for any purpose of reimbursement or indemnity.\\nLinn County. Defendants appeal.\\nDecree modified.\\nTbe facts are stated in the opinion.\\nWeatherford & Blaekbwrn, for Appellants.\\nThe legal presumption is that all conveyances are made in good faith and not fraudulently, and tbe burden of proof rests upon the one who seeks to impeach tbe same for fraud. (O\\u2019Neal v. Boone, 82 Ill. 589; Kruse v. Prindle, 8 Oreg. 162; Mehlhop v. Pettibone, 54 Wis. 656; Darling v. Hurst, 39 Mich. 765; Oreg. Code, p. 261, \\u00a7 766, subd. 19.) Where a conveyance is made upon a valuable consideration, and is alleged to be fraudulent against tbe grantor\\u2019s creditors, an actual and express .intent to hinder, delay, or defraud is necessary to be proved. (2 Pom. Eq. Juris. \\u00a7 971, n. 2, \\u00a7 972.) The purchaser may know, of the indebtedness of his vendor, but if he do not know of his intention to defraud, the sale will be valid. (Evans v. Rugee, 57 Wis. 623.) . The plaintiff Elinn has no standing in court, because the indebtedness to him accrued after the sale of the land, and plaintiff Crawford is in the same predicament because a portion of his claim accrued after the sale, and has been merged in a judgment with that which accrued prior thereto. (Sheppard v. Thomas, 24 Kan. 780; Quimby v. Dill, 40 Me. 528; Baker v. Gilman, 52 Barb. 26; Moritz v. Hoffman, 35 Ill. 553; Usher v. Hazeltine, 5 Greenl. 471; Kane v. Roberts, 40 Md. 594; Lynch v. Raleigh, 3 Ind. 273; Watson v. Riskamire, 45 Iowa, 233; Stone v. Myers, 9 Minn. 303; Gale v. Gould, 40 Mich. 515.) Leaving out of consideration our statute (Oreg. Code, p. 523, \\u00a7 55), where there is a valuable consideration for the land conveyed, there must be proof of actual intent to defraud. (Farlin v. Sook, 30 Kan. 404.)\\nL. Minn, and H. H Hewitt, for Bespondents.\\nFraud may be either actual or constructive. Constructive frand is not a fact, but a conclusion of law from ascertained facts. (Sayre v. Fredericks, 16 N. J. Eq. 209; Barrett v. Barrett, 5 Oreg. 413; Page v. Grant, 9 Oreg. 116; Elfelt v. Hinch, 5 Oreg. 255.) Positive and express proof of fraud is not required. It may be deduced from circumstances affording strong presumption. (Elfelt v. Hinch, 5 Oreg. 255; 3 Greenl. Ev. \\u00a7 254; Story Eq. Juris. \\u00a7 190.) The conveyance of a man\\u2019s whole estate to a near relative, as in this case, affords a very violent presumption of fraud. (McDonald v. Farrell, 60 Iowa, 337; Vait Fraudulent Conveyances, \\u00a7\\u00a7 231, 243; Bump Fraudulent Conveyances, p. 34; Moore v. Roe, 35 N. J. Eq. 90.) The statute authorizing judgments by default or upon confession to be entered by the\\\" clerk in vacation is not unconstitutional; the clerk in entering judgment acts ministerially and not judicially. (Willson v. Cleveland, 30 Cal. 198; Providence T. Co. v. Prader, 32 Cal. 636; Gray v. Palmer, 28 Cal. 416; Leese v. Clark, 28 Cal. 33; Harding v. Cowing, 28 Cal. 212; Humboldt M. & M. Co. v. Terry, 11 Nev. 237; Durham v. Brown, 24 Ill. 93; Lanning v. Carpenter, 23 Barb. 413; Hempstead v. Drummond, 1 Pinn. 534; Wells v. Morton, 10 Wis. 468; Edwards v. Pitzer, 12 Iowa, 607; Choat v. Bennett, 13 Ark. 313.) Courts never declare a statute unconstitutional unless the fact is placed beyond a reasonable doubt. (Talbot v. Hudson, 16 Gray, 422; Ogden v. Saunders, 12 Wheat. 270; Crowley v. State, 11 Oreg. 512; People v. Supervisors etc. 17 N. Y. 241.) It is the duty of courts \\u201cso to construe every act of the legislature as to-make it consistent, if it be possible, with the provisions of the. Constitution.\\u201d (Dow v. Norris, 4 N. H. 17; Clarke v. Rochester, 24 Barb. 471; Marshall v. Grimes, 41 Miss. 27.) When, it appears that the intention of the parties to the deed was to, put the property beyond the reach of the creditors of John Beard, the transaction was void as to subsequent as well as. existing creditors. (Page v. Grant, 9 Oreg. 120; Kerr Fraud and Mistake, p. 207; Wait Fraudulent Conveyances, \\u00a7100;,-1 Story Eq. Juris. \\u00a7\\u00a7 361, 362; Reade v. Livingston, 3 Johns., Ch. 499; Cook v. Johnson, 1 Beasl. 54.)\", \"word_count\": \"4837\", \"char_count\": \"27289\", \"text\": \"Thayee, J.\\nThis is an appeal from a decree rendered by the Circuit Court for the county of Linn, in a suit brought by-the said respondents against the said appellants, to subject certain real property to the payment of three several judgments obtained, by the said respondents severally against the appellant John Beard, in actions at law in said Circuit Court. Said Crawford's judgment was recovered on the 25th day of September, 1883, for the sum of $1,291.51 with costs of action; said Brenner's was recovered October 18, 1883, for the sum of $722.83, with costs of action; and said Flinn's on the same day for the sum of $321.03, with costs of action. Flinn's judgment was also against one J. J. Beard, who was jointly liable with said John Beard. Executions were duly issued upon each of said judgments, and returned unsatisfied prior to the commencement of the suit. #\\nIt appears that Crawford's judgment was upon three promissory notes, one of which bore date in 1875, and is for $596; the other two August 4,1881, and are for the aggregate- sum of 1300; the latter notes were executed to Frank Bros., and transferred by them to Crawford. Brenner's judgment was upon a promissory note which bore date December 13, 1878; and .Flinn's judgment was upon a promissory note executed to him .by said John and J. J. Beard, jointly, on the 15th day of August, 1881.\\nThe said real property is situated in said county of Linn, and >is a part of the said donation land claim of said John Beard and wife. Said Beard settled upon said land claim under the donation act, and obtained a patent to it from the United States. The land m suit is the husband's half, consisting of about 180 .acres. Said John Beard, on the 11th day of February, 1881, executed a deed of conveyance to his son, the said Ambrose .Beard, which purported to convey the said land to him. The respondents alleged in their complaint that said deed was so executed .by the said John Beard to the said Ambrose Beard to .delay and defraud the creditors of the former, which is the main question to be determined upon the appeal. Two of the said judgments were obtained by default, and entered by the clerk of .said Circuit Court in vacation, without any order of the court, and .the third was entered by the said clerk upon confession. The appellants' counsel deny the validity of said judgments, and .claim that the statute authorizing a judgment to be entered in such a case is unconstitutional. Said counsel also claim that only part of the debt upon which the said Crawford's judgment was recovered existed at the time the said deed from John to Ambrose Beard was executed, and none of the debt upon which the said Flinn's judgment was recovered existed at said time. And it is further claimed upon the part of the said appellants that said deed was given in good faith and for a valuable consideration.\\nA large amount of testimony was taken in the case, a great portion of which was immaterial. The proof of statements and admissions made by said John Beard, long after he executed the said deed of the 11th day of February, 1881, unconnected with possession of the property or other circumstances, had no weight; nor was the proof that Ambrose Beard was not known to have had property at the time he is claimed to have purchased and paid for the land of any consequence. It is not pretended that he paid for it with money and property he then had. He claims, however, that at the age of twenty years his father gave him his time, and that for four years or more prior to the date of the said deed he had occupied the said donation claim, including his mother's portion thereof, as a renter; that he worked it upon shares; that his father had sold his portion of the crop, and that at the time the land was deeded to him his father owed him for a thousand bushels of wheat and about $300 besides; that there was a mortgage upon the land in suit of $1,500 principal, and about $480 accrued interest; that he was to pay for the land by assuming the said mortgage, was to give his father said thousand bushels of wheat, and deliver to him four thousand bushels the following season. With this kind of arrangement it was unimportant whether his neighbors knew whether he had any property or not, or whether he had, prior to 1881, been assessed for taxes upon any property or not. The more important question was, whether his father did owe him a thousand bushels of wheat and $300 at the time referred to, or any wheat or money; whether he delivered,to his father the said four thousand bushels of wheat or any wheat, as he claimed to have done. The proof as to what his neighbors thought about his general financial condition, and that he had not been assessed upon property for the purposes of taxation, or as to how much farmers are accustomed to make off of farms in that vicinity, has no tendency to disprove what Ambrose claimed were the facts of the case. Said proof, in my judgment, was almost or quite valueless.\\nThe respondents' counsel claims that the whole of the debt due to Crawford existed when the deed was executed; and that the notes to Frank Bros, were for farming machinery which John Beard ordered in 1880, but did not receive until 1881, at about the time the said notes were executed, but they admit that none of the debt due to Flinn existed at said time.\\nThe view I am inclined to adopt in adjusting the rights of the parties to the controversy, renders it necessary to consider first the question as to the validity of the alleged judgment against John Beard. It is contended upon the part of the appellants that the entry of judgment by default or upon confession, involves the exercise of judicial\\\" power, and that, as all judicial power in this State is required to be vested in certain courts, the legislature had no authority to confer any such power upon the clerk. The decisions of other courts under similar provisions of statute or organic restrictions are conflicting. The point of difference between them is a disagreement as to whether such entry is a judicial or ministerial act. If I were required to decide the abstract question I should be very much inclined to hold that the rendition of judgment, in all cases, was a judicial act. The mere entry of judgment, no doubt, is a ministerial duty, but it seems to me that before such entry can be made there must be an adjudication, either that the facts admitted, or the confession and statement in the particular case, entitle the party to a judgment. But our statute upon the subject has been in force for nearly twenty years. It may be said to have been acquiesced in by the bar, and it has tacitly been upheld by the courts. It has become a rule of practice, and if pronounced invalid now would cause disturbance of property rights, and occasion great mischief. When an act of the legislature has been so long recognized as binding, and important affairs of the community affecting individual rights have been transacted in accordance with its provisions, it should not be disturbed unless it plainly and unequivocally conflicts with the organic law. An act which has. been sanctioned by the community ought not to be declared unconstitutional by the courts, when the question is in any degree doubtful. Whatever, therefore, my own private notions upon the subject are, so long as I am not positively certain of their correctness, I feel constrained to hold that such judgments are valid.\\nThe appellants' counsel contend that neither the said Crawford nor the said Flinn has any standing to question the bona jides of the said deed, as a portion of the claim of the former, they allege, accrued after the execution of the deed, and that the whole of the latter's accrued after its execution. It is not so evident that any part of Crawford's claim accrued after the deed was made. The notes for the portion alleged to have so accrued were given after said time, but the evidence shows that the order for the machinery was given by John Beard-to Frank Bros, in 1880. The debt may not have legally been contracted until the machinery was delivered, but if the sale of the land was mala fide, a creditor to whom an order had been given for an article prior to the sale, and out of which the indebtedness arose, had a right to question the transaction, although the article was not delivered until afterwards. The debt was in process of contraction at the time, and I think the creditor could claim, in case the debtor fraudulently sold his property during the interval, that it was done with intent to defraud him. The statute upon the subject is not confined to creditors. It says: \\\" Made with the intent to delay, hinder, or defraud creditors or other persons,\\\" etc. (Mise. Laws, \\u00a7 51, ch. 6.) If said John Beard made said deed to Ambrose Beard to defraud his creditors, it would certainly have included the Frank Bros, claim that was transferred to Crawford.\\nThe Flinn claim stood upon a different basis. That debt was not contracted until long after the deed was executed and upon record. It arose out of, the renting of a warehouse let to John and J. J. Beard, and the deed could not be questioned by the holder of that debt, unless it were shown that when the said John Beard executed the deed he had in view the creation of the said debt, and intended to defraud the creditor thereof. In the language of Bump on Fraudulent Conveyances, \\\" the conveyance .must be made with an intent to put the property out of the reach of debts, which the grantor at the time of the conveyance intended to contract, and which he does not intend to pay, or has reasonable grounds to believe that he may not be able to pay.\\\" The decision in Page v. Grant, 9 Oreg. 120, was not intended to establish any different doctrine than this, though the language employed in the opinion is veiy general. The purpose and intent for which the deed was given must be ascertained by an examination of all the facts and circumstances of the case, and if the legitimate inference drawn therefrom is that John Beard intended by the execution of said deed to delay, hinder, or defraud his creditors, and that Ambrose Beard knew when he received it that such was the intent, then it is void as to existing creditors, or subsequent, if the grantor contemplated the contraction of the debts and did not intend to pay them, or had reasonable grounds to believe that he would not be able to pay them.\\nThe respondents' counsel contend that the conveyance from John Beard of the property in question included all his property; that the appellants' account of the affair was vague, uncertain, and contradictory, and that it should be inferred therefrom, in view of the relations of the parties, and the manner in which they had conducted their business before and after the deed was executed, that it was intended to defraud the creditors of said John Beard. Fraud is established in such a case by inference or presumption. It may be inferred or presumed from the nature and character of the transaction itself, or from faots and circumstances connected with it. If the necessary result of the act is to place the debtor's property beyond the reach of legal process, so as to delay creditors, it will be presumed that it was done with a fraudulent intent; but when the act is apparently regular and fair upon its face, the intent must be gathered from the surroundings. In such a case the tests, which reason and experience have shown were indicative of a fraudulent design and purpose, must be resorted to in order to ascertain the probable motive which actuated the parties in the affair. In this case, there is nothing upon the face of the transaction indicating bad faith. John Beard was in debt, it is true, but that did not preclude him from selling his farm. The deed is in the ordinary form. It recites a valuable consideration as having been received, and was placed upon record immediately after its execution. The conveyance was from a father to a son, but the latter was of full age and had an undoubted right to purchase his father's estate. The evidence, therefore, that the sale was made with intent to hinder, delay, or defraud creditors must be sought for outside of the apparent facts in the case. The consideration recited in the deed is open to inquiry, and if shown to be only a pretense, the inference would necessarily follow that the transaction was merely colorable. The respondents have attempted to show that there was no consideration in fact for the conveyance, and \\u00b0if they have succeeded in showing that, they have established their cause of suit. That is the vital question in the case.\\nThe testimony tends to show that Ambrose Beard and his father had some negotiation in regard to the sale and purchase of the said land in 1880; that a bond for a deed was drawn up and some notes written out, but the matter was not consummated; that about the time the said deed was executed, they concluded to make a different arrangement, whereby Ambrose was to buy the land, turn in a claim for a thousand bushels of wheat his father owed him, assume the mortgage upon said land that had been executed by John Beard to John Thomas, and the interest accrued thereon, amounting to $480, and deliver to his father in the following fall four thousand bushels of wheat in full payment of the land. The deed was made and executed and recorded, and I am satisfied from the evidence that said Ambrose delivered to the said John Beard, in pursuance of the bargain, three thousand nine hundred and one bushels and fourteen pounds of wheat.\\nThe testimony of J. J. Beard establishes that fact very fully. He testified that he and John Beard were partners in the warehouse business. Says: \\\"We commenced about August 15th, I won't be positive; some time in the fore part of August, 1881.\\\" He was then asked this question: \\\"Will you please turn to the warehouse book for the firm for that year and state how much wheat was left stored there with the firm by Ambrose Beard in the fall of 1881?\\\" Answer. \\\"Three thousand nine hundred and one bushels and fourteen pounds.\\\" Question. \\\"State who sold that wheat,when it was sold, and the prices received.\\\" A. \\\" The first lot of wheat sold was two hundred and twenty-nine bushels, for seventy-three and one half cents per bushel, September 23d. On September 24th he sold one thousand bushels for seventy-six and one half cents. I haven't got the price of the other wheat; December 9th, five hundred bushels; October 26th, seven hundred and sixty-five bushels; December 17th, one thousand four hundred and seven bushels and fourteen pounds; I think it was seventy-nine cents, wouldn't, be positive.\\\" Q. 12. \\\"To whom was the money paid for the wheat?\\\" A. \\\"To John Beard, I gave him an order on himself for it. He was the treasurer.\\\"\\nThese sales, as I compute them, amount to $3,040.69|-, which was the product of the crop of wheat Ambrose Beard raised from the entire farm in the year of 1881. It is claimed by counsel for the respondents that John Beard paid out this money by paying off the interest on the mortgage, the $480, and the expenses of working the place. I think the evidence shows' that John Beard did pay the $480, though Ambrose claims that he repaid it, or that it was paid out of his money. There is no evidence that John Beard paid any of the expenses of the farm that I have discovered.\\nIt is also claimed by said counsel that Ambrose Beard, after the deed was executed to him, continued to occupy the place as before; that John Beard remained in possession and controlled the management. I do not think the evidence shows that. It is true the parties lived in the same house, but that, with the other buildings upon the claim, and the orchard, were on Mrs. Beard's part. J. J. Beard testifies that Ambrose, after the deed was made, seemed to take the management of affairs; \\\"there was an apparent change in the management and control of the place when the deed was executed.\\\"\\nAs I view the matter, there was an intended sale of the property to Ambrose Beard. John Beard had grown old and evidently had not been successful in farming, and some time prior to the summer of 1881 he conceived the idea of going into the warehouse business, and probably thought he would sell to Ambrose and take his pay for the part that would be coming to him in wheat; that he would be in the wheat business and could dispose of the wheat at a better advantage. The dealings between the parties were very loose. It would not seem, by the answer filed in the suit, that they had any definite idea as to what their arrangements were. It was understood between them that the old gentlemen owed his son a thousand bushels of wheat, or for that amount of wheat, and some money, but they could neither of them give an intelligent idea about it, yet they made the bargain upon that understanding, and the land was deeded to Ambrose.\\nThat either of the parties actually intended to defraud the creditors of John Beard, I do not think can be maintained from the facts and circumstances of the case. I have no idea that the creditors were considered or thought of. The debts had been standing then a long time, except the portion for the farming machinery which was only in process of creation. No effort seems to have been made upon the part of the creditors, Crawford and Brenner, to collect them. It was not a case where a debtor was being pressed for payment, and was compelled to make a shift. The claims were drawing interest at the rate of one per cent a month, and the holders were no doubt content to let them run. The interest at that, rate, kept up for seven or eight years, would produce an amount equal to the principal. Said creditors never manifested sufficient interest in their claims to ascertain before two years and a half that the said deed had been made, although it stood recorded during all that time in the record of deeds in the clerk's office in the town where they lived. They seem to have-manifested an entire indifference in regard to the payment of their claims, and they are not entitled to any credit for leniency. The creditor who holds a note against a farmer, that is drawing twelve per cent annual interest, does not confer any benefit on the latter by a forbearance of the debt, as a general thing. It will ordinarily be only a matter of time when the interest eats up the farm.\\nBut while the appellants may not have intended to defraud the creditors of John Beard by the transaction, yet there are suspicious circumstances as to the amount of consideration paid, and of the basis of the transaction. It does not appear sufficiently certain that John Beard owed Ambrose any wheat, or for any wheat, or any money, at the time the deed was executed, nor is it shown satisfactorily that Ambrose furnished the money that was paid for interest on the said mortgage to Thomas, the $480, and the $300 paid subsequently. It is a well established rule of equity that a deed obtained under suspicious or inequitable circumstances, or which is only constructively fraudulent, may be permitted to stand as security for any purpose of reimbursement or indemnity. (Boyd v. Dunlap, 1 Johns. Ch. 478.) I believe this case comes within the principle of that rule'. I think that Ambrose Beard should be repaid for the wheat delivered to his father after the deed was executed\\u2014the three thousand'nine hundred and one bushels and fourteen pounds\\u2014after making a reasonable reduction for the use of the premises during the four years he occupied them. According to his own testimony there must have been raised off the premises in question in the year 1881, of the three thousand nine hundred and one bushels and fourteen pounds, about three thousand bushels. Allowing a third of that for the use of the land, it would amount to one thousand bushels, which, at seventy-eight cents a bushel, would be $780, leaving due to said Ambrose $2,261.69J. The rent for the other three years subsequent cannot be ascertained with any degree of accuracy. It does not appear what the farm has produced during that time. The product of 1881 is probably no criterion, as the amount of the yield in such cases depends very much on favorable conditions. The $2,261.69J should draw interest, which at eight per cent per annum would be about $181 a year, which for four years would amount to $724, and added to the principal would make $2,985.69|-. Four hundred dollars a year rent for the three years would be a safe estimate, I think. That would amount to $1,200, which, taken from the former sum, would leave $1,785.69J due the said Ambrose as a charge upon said land.\\nThe decree will therefore be: -First, that from the proceeds of the sale of said land, made under the decree of the Circuit Court, the costs and disbursements of said suit and the expenses of making said sale be first paid. Second, that the said sum of $1,785.69J be next paid therefrom to the said Ambrose Beard. Third, that the claim of said Crawford and Brenner be next paid therefrom, if sufficient remains. Fourth, that the claim of said Minn be next paid therefrom, if sufficient remains, and the remainder, if there be any, be paid over to the said Ambrose Beard. That neither party recover costs or disbursements upon the appeal.\\nThe chief justice is of the opinion that the statute conferring upon clerks power to enter a judgment in such a case is unconstitutional and void, and that the maxim communis error facit jus is inapplicable. (Pease v. Peck, 18 How. 597.)\"}"

or/2300045.json

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+"{\"id\": \"2300045\", \"name\": \"MARY E. BARRETT, Appellant, v. XARIFA J. FAILING, Respondent\", \"name_abbreviation\": \"Barrett v. Failing\", \"decision_date\": \"1879-07\", \"docket_number\": \"\", \"first_page\": \"152\", \"last_page\": \"157\", \"citations\": \"8 Or. 152\", \"volume\": \"8\", \"reporter\": \"Oregon Reports\", \"court\": \"Oregon Supreme Court\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T18:56:00.313663+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"MARY E. BARRETT, Appellant, v. XARIFA J. FAILING, Respondent.\", \"head_matter\": \"MARY E. BARRETT, Appellant, v. XARIFA J. FAILING, Respondent.\\nRes Ad judicata.\\u2014The judgment of a court of competent jurisdiction is not only conclusive on all questions actually and formally litigated, hut as to all questions within the issue, whether formally litigated or not.\\nIdem\\u2014Paeol Evidence not Admissible to Show that Question was Withdrawn.\\u2014In a suit or proceeding to recover property or its value when the plea of a former adjudication is interposed by the defendant, the plaintiff will not be permitted to offer parol evidence to show that an issue made by the pleadings in the former suit was withdrawn from the consideration of a referee before whom it was tried.\\nAppeal from Multnomah. County. The facts are stated in the opinion.\\nO. P. Blas\\u00f3n and W., Scott Beebe, for appellant.\\nWm. Strong & Sons, for respondent.\", \"word_count\": \"2231\", \"char_count\": \"12931\", \"text\": \"By the Court,\\nKelly, C. J.:\\nOn the eighteenth day of February, 1871, Mary E. Barrett, the above-named appellant, recovered a judgment against Charles Barrett in the circuit court of the state, for the county of Multnomah, in the sum of five thousand nine hundred and twenty-one dollars and thirty-two cents and forty-six dollars and thirty cents costs. The foundation of the action was a decree for alimony in a divorce case prosecuted in the state of California wherein the said Mary E. obtained a divorce from the said Charles Barrett.\\nOn the first of November, 1873, Charles Barrett died, leaving the judgment entirely unsatisfied, but at the time of his death there was pending against him and Xarifa J. Failing, then Barrett, a suit in equity to set aside as fraudulent a certain conveyance of real property and a sale of personal property\\u2014the same that is in question in this proceeding. The result of that suit was the securing of a payment on the judgment of three thousand and sixty-four dollars and forty-seven cents on the first day of May, 1876. On the tenth of August, 1878, the appellant obtained leave to issue an execution on the judgment for seven thousand three hundred and thirty-five dollars and sixty-seven cents, that being the amount then due. Execution was issued on the judgment against Charles Barrett, who was then dead; upon which a garnishee process was served on X. J. Failing, the respondent, on the thirteenth of August, 1878, in accordance with the provisions of sections 308 and 309 of the civil code. Written allegations and interrogatories were filed by the plaintiff, which the garnishee was required to answer by an order of the judge of the circuit court. Among these allegations, the principal one charged that on or about the - day of November, 1870, the said Charles Barrett, with the intent to delay, cheat, and defraud his creditors, particularly the plaintiff, and to prevent her from collecting her said judgment, transferred and delivered to the said Xarifa J. Failing, at the city of Portland, all his property, to wit, the said goods and chattels, fixtures, etc., known as the Barrett bookstore, worth fifteen thousand dollars, and that she received the possession thereof with full knowledge of all the facts herein stated.\\nOn the fifth day of December, 1878, the garnishee, X. J. Failing, filed her answer denying all the allegations of fraud, and averring that the property so received by her from Charles Barrett was of no greater value than three thousand dollars, and that she received and paid for the same in good faith. She then, for a further answer, alleged that on the second day of June, 1871, the said plaintiff commenced a suit in the circuit court for Multnomah county against the said Charles Barrett and this garnishee, in which suit the plaintiff sought to set aside the same sale and transfer of personal property which is set forth in the plaintiff's allegations in these proceedings; that she asked in substance and effect that the sale and transfer of the personal property known as the Barrett bookstore, etc., from the said Charles Barrett to this garnishee, on the fourteenth day of September, 1870 (described herein as of about the - day of November, 1870), might be declared fraudulent and void as against her, and that the garnishee be decreed to account for all the said property; that she, the said garnishee, answered the said complaint, and it was made one of the issues in the said suit in equity, whether or not the said transfer of personal property to this garnishee was fraudulent and void, and whether or not the said plaintiff was entitled to have the said property or its proceeds applied to the payment of the said judgment against Charles Barrett.\\nThe .garnishee then alleges that the said suit was referred by the circuit court to E. C. Bronaugh, who was appointed a referee to take testimony; that the referee took the testimony upon all the issues in said suit in relation to the sale and transfer of the said Barrett bookstore, and on the twenty-second of September, 1873, made his report thereon to the effect that the sale and delivery of the said personal property to this garnishee, on the fourteenth of September, 1870, was not fraudulent and void, and that this report, so far as it relates to the personal property, was not excepted to, and on the eighth day of June, 1874, the said circuit court adjudged and decreed that the findings of said referee, in reference to the said personal property, should in all things be confirmed.\\nThe plaintiff (appellant), on December 17, 1878, filed a reply, and on January 25, 1879, an amended reply, in which, among other things, she makes a denial substantially as follows: \\\"And in reply to the further and separate answer of the said Xarifa J. Failing, to wit, the allegations of a former adjudication of the subject-matter of this proceeding, this plaintiff alleges that it is not true that the subject-matter of this proceeding was, in the suit commenced on the second day of June, 1871, or at any other time, adjudicated in any manner, and that there was not, at any time during the pendency of said suit, any evidence offered or taken by said referee, or introduced by either party to said suit, of the subject-matter in this proceeding, to wit, the said bookstore; denies that any evidence was introduced before or received by said referee, at any time, relating to the transfer, sale, or delivery of the subject-matter of this proceeding, to wit, the bookstore in controversy, or the rights of the garnishee; denies that the referee passed on the same, and alleges that, long before the finding of said referee therein, and before any trial thereof, this plaintiff, by her attorney, expressly and without objection from either of the defendants therein, and with the consent of said Xarifa J. Bailing and her attorney, abandoned and withdrew from said suit all claim to personal property, which is the subject-matter of,these proceedings, and no objection was made to the withdrawal by said Xarifa J. Bailing (the garnishee herein) or her attorneys; denies that the referee passed upon or found any fact or law upon the matter herein sought to be litigated in said suit, or in any suit; denies that on the twenty-second of September, 1873, or at any time, the said referee made or filed any finding of fact or conclusion of law to the effect that said sale of personal property was not fraudulent and void; and denies that the circuit court at any time rendered any decree that the finding of the referee in reference to the personal property described herein should be or was confirmed, adjudged, or passed upon.\\\"\\nThere are other defenses interposed by the garnishee, but it is unnecessary to present or consider them, as the view we take of the defense of a former adjudication disposes of this proceeding.\\nUpon filing the reply, the respondent, by her counsel, moved the court for judgment and decree upon the pleadings, and that the proceedings against the garnishee be dismissed; which motion was sustained by the court, and a decree entered accordingly.\\nFrom the answer filed in this case, it appears that on the fourteenth day of September, 1870, a suit in equity was commenced by the appellant, Mary B. Barrett, against Charles Barrett, and Xarifa J. Bailing, the respondent herein, to set aside the sale of certain property, including the Barrett bookstore, made by Charles Barrett to the respondent, because the same was made to defraud the creditors of said Charles Barrett. An answer was made in that suit by the respondent, denying the fraudulent sale. It is not denied by the appellant that the suit was concerning the subject-matter of this proceeding. Nor is it denied that the issue presented by the pleadings in that case was the same in regard to the Barrett bookstore as that now presented for consideration in this proceeding. The appel lant, in her reply, alleges that so far as the Barrett bookstore was concerned, the same was expressly withdrawn by her attorney from the consideration of the referee appointed in the suit in equity; that no evidence was offered or received before the said referee in regard to this issue made by the pleadings in that suit; that it was withdrawn from the consideration of the referee without objection from either of the defendants, and with the consent of the said Xarifa J. Failing, and that her attorney in that suit abandoned and withdrew from the said suit all claim to the personal property which is the subject-matter of this proceeding; that there was no finding by the referee or decree made by the court in regard to the matter now in controversy in this proceeding.\\nThese matters set forth in the reply can not be considered as any defense to the allegation of a former adjudication set up in the auswer, because it does not appear that the withdrawal of the litigation concerning the bookstore from the consideration of the referee was entered upon the record, or made a matter of record in the suit in equity. It is well settled that parol evidence can not be admitted to show that any issue presented by the pleadings in a former action or suit was withdrawn from the consideration of the court. The rule is that the judgment of a court of competent jurisdiction is not only conclusive on all questions not actually and formally litigated, but as to all questions within the issue, whether formally litigated or not. (Bellinger v. Croigne, 31 Barb. 537.)\\nIn the case of Davis v. Talcott (12 N. Y. 184), where the defendant, in his answer, alleged that the matter in controversy had been adjudicated in a former action, and the plaintiff replied, alleging \\\"that on the trial of the former action, the defendant therein withdrew from the consideration of the referee before whom it was tried, the matters alleged in the complaint in the second suit, and that the same did not pass into or form any part of the judgment rendered in that action,\\\" it was held by the court of appeals that the plaintiff could not be permitted to prove that on the trial of the former suit, before the referee, no evidence was offered or introduced, on the part of the defendant in that action, to prove or establish the claim for damages set up by way of recoupment in the answer therein, but that, on the contrary, the defendant in that suit, on the trial thereof, expressly withdrew from the consideration of the referee the whole and every part of such claim. Gar-diner, 0. J., delivering the opinion of the court, said: \\\" The learned judge who tried this cause erred in determining that the judgment in the first suit between these parties was not a bar to the present action, and in permitting the legal effect of the record to be explained or qualified by parol evidence of what then occurred before the referee.\\\"\\nIn the case of Underwood v. French (6 Or. 66), where the plaintiff sought to recover damages for the breach of a contract, and the plea of a former adjudication was interposed by the defendant, it was held by this court that where it appeared, from an inspection of the record in the former action, that the same cause of action was presented in the former suit, and an issue joined thereon, the whole must be considered as res adjudicata, and that parol evidence would not be permitted to show that an issue joined by the pleadings was not tried by the evidence. This rule is applicable to suits in eauity, as well as to actions at law. (1 Johns. Cas. 492.)\\nAccording to the law, as declared in these cases, if this proceeding were now before the circuit court for trial upon the issues presented in the pleadings, the appellant would not be permitted to offer any evidence outside of the record itself to prove the allegations in her reply as to the withdrawal of the matters now in litigation from the consideration of the referee, and necessarily the matters herein sought to be litigated would have to be considered as res adjudicata.\\nUnder the views herein taken, it becomes unnecessary to consider the other assignments of error. The decree of the court below is affirmed.\"}"

or/2339483.json

@@ -0,0 +1 @@
+"{\"id\": \"2339483\", \"name\": \"In the Matter of the Compensation of Darryl G. Warner, Claimant. WARNER, Petitioner, v. SAIF CORPORATION, Respondent\", \"name_abbreviation\": \"Warner v. SAIF Corp.\", \"decision_date\": \"1983-05-25\", \"docket_number\": \"WCB 80-03034, CA A24974\", \"first_page\": \"280\", \"last_page\": \"283\", \"citations\": \"63 Or. App. 280\", \"volume\": \"63\", \"reporter\": \"Oregon Reports, Court of Appeals\", \"court\": \"Oregon Court of Appeals\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T23:36:32.275796+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Joseph, Chief Judge, and Warden and Young, Judges.\", \"parties\": \"In the Matter of the Compensation of Darryl G. Warner, Claimant. WARNER, Petitioner, v. SAIF CORPORATION, Respondent.\", \"head_matter\": \"Argued and submitted March 2,\\naffirmed May 25,\\nreconsideration denied August 19,\\npetition for review denied September 27, 1983 (295 Or 730)\\nIn the Matter of the Compensation of Darryl G. Warner, Claimant. WARNER, Petitioner, v. SAIF CORPORATION, Respondent.\\n(WCB 80-03034, CA A24974)\\n663 P2d 820\\nRobert K. Udziela, Portland, argued the cause for petitioner. With him on the brief was Pozzi, Wilson, Atchison, O\\u2019Leary & Conboy, Portland.\\nDarrell E. Bewley, Appellate Counsel, SAIF, Salem, argued the cause and filed the brief for respondent.\\nBefore Joseph, Chief Judge, and Warden and Young, Judges.\\nJOSEPH, C.J.\", \"word_count\": \"538\", \"char_count\": \"3233\", \"text\": \"JOSEPH, C. J.\\nClaimant appeals an order of the Workers' Compensation Board affirming the referee's award of 80 percent scheduled disability for an injury to his right knee. The referee did not admit in evidence a medical report which claimant had not furnished to opposing counsel before the hearing. The Board refused to remand the case to the referee for consideration of that exhibit. Claimant argues that that was an abuse of discretion, and that is the only issue presented.\\nClaimant suffered a compensable injury to his right knee on September 7, 1975. Since then, he has undergone numerous right knee surgeries and has been hospitalized several times for treatment of infections and complications. The issue at the hearing was the extent of disability. There were 99 exhibits admitted in evidence. Most were medical reports dealing with claimant's knee injury and its complications. Several of them reported difficulties he was having with his left knee. At least one described degenerative arthritis in that knee.\\nExhibit 99 is a medical report that concludes that claimant suffers from pre-existing osteoarthritis in his left leg and lower back that was aggravated by his right knee injury. A copy of that report was received by claimant's attorney on April 7,1981, and was sent to the Hearings Division in August, 1981. No copy was sent to SAIF, and the referee refused to admit it. Claimant argues that Exhibit 99 is the only piece of medical evidence showing a causal connection between his right knee injury and his low back and left knee problems. He claims that it is crucial evidence of the extent of his disability.\\nOAR 436-83-400 provides:\\n\\\"(3) As soon as practicable and not less than 10 days prior to the hearing each party shall file with the assigned referee and provide all other parties with legible copies of all medical reports and all other documentary evidence upon which the party will rely except that evidence offered solely for impeachment need not be so filed and provided.\\n\\\" (4) At the hearing the referee may in his discretion allow admission of additional medical reports and other documentary evidence not filed as required by (3) above.\\\"\\nAlthough a referee or the Board is not bound by \\\"common law or statutory rules of evidence or by technical or formal rules of procedure,\\\" ORS 656.283(6), the record discloses no basis for us to say that discretion was abused in refusing the exhibit. Some compelling basis must exist for remanding, Buster v. Chase Bag Co., 14 Or App 323, 513 P2d 504 (1973); Tanner v. PSC Tool Co., 9 Or App 463, 497 P2d 1230 (1972), and we find none.\\nAffirmed.\"}"

or/2352320.json

@@ -0,0 +1 @@
+"{\"id\": \"2352320\", \"name\": \"CITY OF PORTLAND, Petitioner, v. EMPLOYMENT DIVISION et al, Respondents\", \"name_abbreviation\": \"City of Portland v. Employment Division\", \"decision_date\": \"1988-12-07\", \"docket_number\": \"EAB 88-AB-376; CA A48102\", \"first_page\": \"279\", \"last_page\": \"282\", \"citations\": \"94 Or. App. 279\", \"volume\": \"94\", \"reporter\": \"Oregon Reports, Court of Appeals\", \"court\": \"Oregon Court of Appeals\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T17:24:22.358450+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Richardson, Presiding Judge, and Newman and Deits, Judges.\", \"parties\": \"CITY OF PORTLAND, Petitioner, v. EMPLOYMENT DIVISION et al, Respondents.\", \"head_matter\": \"Argued and submitted November 7,\\nreversed and remanded for reconsideration December 7, 1988\\nCITY OF PORTLAND, Petitioner, v. EMPLOYMENT DIVISION et al, Respondents.\\n(EAB 88-AB-376; CA A48102)\\n765 P2d 222\\nLiana Colombo, Deputy City Attorney, Portland, filed the brief for petitioner.\\nRobert M. Atkinson, Assistant Attorney General, Salem, argued the cause for respondent Employment Division. With him on the brief were Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem.\\nGreg O\\u2019Neill, Bend, argued the cause and filed the brief for respondent Robert D. Clary.\\nBefore Richardson, Presiding Judge, and Newman and Deits, Judges.\\nRICHARDSON, P. J.\", \"word_count\": \"595\", \"char_count\": \"3716\", \"text\": \"RICHARDSON, P. J.\\nEmployer seeks review of EAB's decision that claimant, who was discharged as a police officer for unlawful possession and use of cocaine and for other related violations of employer's rules, is eligible for unemployment compensation. EAB found that claimant was addicted to alcohol and cocaine and that, because of his addiction, his misconduct was not \\\"wilful.\\\"\\nIn James River Corp. v. Employment Division, 94 Or App 268, 765 P2d 217 (1988), we reversed and remanded EAB's order allowing benefits to a claimant who was fired for on-the-job intoxication. The essence of our reasoning was that EAB interpreted and applied our decisions in Christensen v. Employment Division, 66 Or App 309, 673 P2d 1379 (1984), and Kaeding v. Employment Division, 72 Or App 392, 695 P2d 966 (1985), as establishing a rule of law that an alcoholic person cannot wilfully engage in alcohol-related conduct, because the condition, rather than the person, dictates the conduct. We disagreed with EAB's understanding of the two opinions and explained that it is a question of fact whether the condition or the actor's wilfulness caused the conduct in any given case. We therefore remanded the order for EAB to make appropriate findings and for further consideration.\\nThe same result follows and essentially the same reasoning applies here, but two additional factors are present: Claimant was a policeman, and he used a different and illegal drug as well as alcohol. In principle, there is no reason why the general rule should differ in the case of alcoholism and the case of addiction to and illegal use of controlled substances: If a person's substance-related condition causes him to engage in certain conduct without volition, the conduct is not wilful under ORS 657.176(2)(a) and OAR 471-30-038(3). However, that generality does not answer any specific questions. The evidence in particular cases could show that different substances may have different effects on a person's capacity to engage wilfully in various forms of conduct. Moreover, as Division correctly observes:\\n\\\"Assuming that one accepts the disease model of alcoholism, it is evident that a person who unknowingly has the disease could begin to drink and be led by the disease into compulsive drinking without committing any unlawful acts. The same cannot generally be said of narcotic addiction.\\\"\\nIn other words, the first drink is a legal act; the first snort of cocaine is not, and there was evidence that claimant used cocaine for a number of years.\\nGenerally, off-the-job use of illicit drugs which does not impair work performance is not \\\"connected with work\\\" within the meaning of ORS 657.176(2)(a). See Glide Lumber Prod. Co. v. Emp. Div. (Smith), 86 Or App 669, 741 P2d 907 (1987). If EAB needs to reach the question on reconsideration, it should decide in the first instance whether that general rule applies to police officers and whether it is germane to the specific violations on which claimant's discharge was based.\\nReversed and remanded for reconsideration.\"}"

or/2356382.json

@@ -0,0 +1 @@
+"{\"id\": \"2356382\", \"name\": \"STATE OF OREGON, Respondent, v. STEVEN ALAN MOCK, Appellant\", \"name_abbreviation\": \"State v. Mock\", \"decision_date\": \"1992-12-02\", \"docket_number\": \"91-04-5252-C; CA A70744\", \"first_page\": \"674\", \"last_page\": \"674\", \"citations\": \"116 Or. App. 674\", \"volume\": \"116\", \"reporter\": \"Oregon Reports, Court of Appeals\", \"court\": \"Oregon Court of Appeals\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-11T00:24:32.405141+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Richardson, Presiding Judge, and Deits and Durham, Judges.\", \"parties\": \"STATE OF OREGON, Respondent, v. STEVEN ALAN MOCK, Appellant.\", \"head_matter\": \"Argued and submitted July 31,\\naffirmed December 2, 1992\\nSTATE OF OREGON, Respondent, v. STEVEN ALAN MOCK, Appellant.\\n(91-04-5252-C; CA A70744)\\n842 P2d 466\\nJesse Wm. Barton, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Sally L. Avera, Public Defender, Salem.\\nHarrison Latto, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Charles S. Crookham, Attorney General, and Virginia L. Linder, Solicitor General, Salem.\\nBefore Richardson, Presiding Judge, and Deits and Durham, Judges.\", \"word_count\": \"100\", \"char_count\": \"642\", \"text\": \"PER CURIAM\\nAffirmed. State v. Little, 116 Or App 322, 842 P2d 414 (1992).\"}"

or/2367775.json

@@ -0,0 +1 @@
+"{\"id\": \"2367775\", \"name\": \"SALEM-FAIRFIELD TELEPHONE ASSN. v. McMAHAN\", \"name_abbreviation\": \"Salem-Fairfield Telephone Ass'n v. McMahan\", \"decision_date\": \"1915-12-28\", \"docket_number\": \"\", \"first_page\": \"477\", \"last_page\": \"483\", \"citations\": \"78 Or. 477\", \"volume\": \"78\", \"reporter\": \"Oregon Reports\", \"court\": \"Oregon Supreme Court\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T21:13:08.340040+00:00\", \"provenance\": \"CAP\", \"judges\": \"Mr. Justice Benson, Mr. Justice Burnett and Mr. Justice McBride concur.\", \"parties\": \"SALEM-FAIRFIELD TELEPHONE ASSN. v. McMAHAN.\", \"head_matter\": \"Argued December 7,\\naffirmed December 28, 1915.\\nSALEM-FAIRFIELD TELEPHONE ASSN. v. McMAHAN.\\n(153 Pac. 788.)\\nJoint Adventures \\u2014 Presumption as to Interest of Parties in Telephone Line.\\n1. Where the evidence was conclusive that three persons constructed a certain telephone line as a joint venture, which act created, as between themselves, a fiduciary relation analogous to a partnership, it will be presumed, where there is no evidence to the contrary, that each had an undivided one-third interest.\\nCorporations \\u2014 Powers and Liabilities of Under Joint Ventures.\\n2. In the absence of a statute, a corporation cannot agree to enter into a partnership with a person, firm or other corporation, but may, under a joint venture with others, transact any business within the scope of its legitimate powers, and by reason thereof become liable on account of the fiduciary relation thus assumed, which relation is subject to dissolution, accounting and settlement in a court of equity in the same manner as all other cases of partnership.\\nJoint Adventures \\u2014 Mutual Eights \\u2014 Corporations.\\n3. Where the interests of two or three persons owning a telephone line as a joint venture were absorbed and taken over by a corporation, but the third party retained his interest, held that the assignee of the party retaining his interest was entitled to an undivided one-third interest in the line,'subject to the payment of his ratable share of the operating expenses of a three-party line.\\n[As to joint adventure as distinguished from partnership, see note in 115 Am. St. Eep. 407.]\\nFrom Marion: 'William Galloway, Judge.\\nDepartment 1.\\nStatement by Mr. Chief Justice Mooee.\\nTbis is a suit by tbe Salem-Fairfield Telephone Association, a corporation, against L. H. McMahan, in which defendant had a decree enjoining the adding of other customers to the line or from interfering therewith, and the plaintiff appeals. Affirmed and remanded for further proceedings.\\nAffirmed and Remanded.\\nFor appellant there was a brief over the name of Messrs. McNary, Smith & Shields, with oral arguments by Mr. John H. McNary and Mr. Roy F. Shields.\\nFor respondent there was a brief over the names of Mr. Myron E. Pogue, Mr. L. H. McMahan and Mr. Woodson T. Slater, with oral arguments by Mr. Pogue and Mr. McMahan.\", \"word_count\": \"1819\", \"char_count\": \"10902\", \"text\": \"Opinion by\\nMr. Chief Justice Moore.\\nIt appears from a transcript of the testimony that in the year 1898 a local telephone line was constructed northerly along a county road from Salem about ten miles by W. H. Egan and others. With their consent a branch line, known as telephone line No. 6, was built from their line northwesterly beside a public highway by A. M. La Follette, L. F. Townsend and Oliver Beers, who installed and used phones in their respective farmhouses. Several other telephone lines were also built in the same manner and connected with the line constructed by Egan and others. As the telephone poles began to decay and other repairs became necessary, a written agreement was signed March 16, 1908, by many persons using telephones on these lines, whereby they undertook to consolidate such lines into a system, to be controlled by an unincorporated society, called the Salem-Fairfield Telephone Association. This agreement, however, was not signed by either La Follette, Townsend or Beers. In order to put into effect the terms of the writing, some of the users of telephones on the several lines met, pursuant to notice, and elected seven members to constitute the board of trustees; La Follette being chosen to represent line No. 6. By-laws were adopted providing that capital stock in the association should consist of all necessary appliances required to build, maintain, and operate a telephone system, and such stock should be divided into shares of $25 each; that no member should be entitled to own or control more than three shares, entitling bim to one vote for each share at a stockholders' meeting. The trustees were authorized to levy equal annual assessments to meet the expenses of maintaining and operating lines, not exceeding $3.50 for each share, except in cases of emergency, when a majority of the stockholders were empowered to increase the assessment. Section 5 of Article VI of the by-laws was as follows:\\n\\u2022\\\"It is agreed by the undersigned stockholders that all the lines forming a part of this association shall be placed in first-class shape by June 1, 1908, at which time the same shall become the property of the association.\\\"\\nSection 9 of Article V provided that:\\nThe board of trustees \\\"shall have authority to expel and disconnect any member who shall violate any of the rules of this association or these by-laws or who shall refuse or neglect promptly to pay any assessment or fine levied or assessed against him.\\\"\\nOliver Beers and his wife on January 13, 1909, entered into a contract with the defendant, whereby they covenanted to sell and convey to him their farm. The defendant also paid Beers the sum of $25 for all his interest in telephone line No. 6. In conformity with the terms of the contract, the defendant immediately took possession of the premises, except such part thereof as had been leased, and began making extensive improvements. La Follette and Townsend were members of the unincorporated association, but neither Beers nor the defendant ever became a member thereof, though a share of its capital stock was issued to Beers May 15, 1909, and after McMahan had become the purchaser of the land. At an annual meeting of the stockholders of the association a motion was regularly passed to the effect that a special meeting be called to discuss the propriety of incorporating the society, and the secretary was directed to give notice of such meeting. Pursuant thereto there was sent out a notice which reads:\\n\\\"Salem, Or., June 9, 1910.\\n\\\"Dear Sir: You are hereby notified that a meeting of the \\u2022 stockholders of the Salem-Fairfield Telephone Association will be held at the Clear Lake Schoolhouse Wednesday evening, June 15, 1910, at 8 o'clock, for the purpose of determining whether or not we shall incorporate under the laws of Oregon. You are earnestly requested to be present at this meeting.\\n\\\"Yours truly,\\n\\\"Alex Harold, Sec.\\\"\\nThe minutes of the meeting, held pursuant to that notice, in referring to the question of incorporating the association, reads:\\n\\\"The vote being taken, it was carried unanimously.\\\"\\nPredicated upon that authorization the plaintiff was duly incorporated June 20,1910. The corporation put up new poles and reconstructed line No. 6, and thereupon demanded payment of assessments from defendant, who refused to comply, for the reason that he was not a stockholder of the plaintiff, but chiefly because other phones had been added to the line which he asserts was exclusively built to accommodate only three families. McMahan, however, without recognizing the right to absorb his interest in line No. 6, made to the corporation some payments which he called contributions, and also offered another donation which the plaintiff refused, and it caused the wire leading from his farmhouse to he cut, whereupon he connected the wire, thereby precipitating this suit, which resulted as hereinbefore stated.\\n1. The evidence conclusively shows that La Follette, Townsend and Beers constructed telephone line No. 6 as a joint venture, which undertaking constituted as between them a fiduciary relation analogous to a partnership, in which it must be presumed, in the absence' of any evidence to the contrary, each had an equal interest: Gius v. Coffinberry, 39 Or. 414 (65 Pac. 358); Eilers Music House v. Reine, 65 Or. 598 (133 Pac. 788); Campbell's Gas Burner Co. v. Hammer, post, p. 612 (153 Pac. 475). When, therefore, Beers agreed in writing to sell his farm to the defendant, who pursuant to the express terms of the contract immediately took possession, the relation referred to was severed, and McMahan became the owner of an undivided one-third interest in telephone line No. 6. No assignment or transfer by La Follette or Townsend of their respective shares in that line appears to have been made either to the society or its successor the corporation. But, however this may be, it will be assumed, without attempting to decide a question which is not involved in this appeal, that their interests in telephone line No. 6 passed by estoppel to, and are now held and owned by, the plaintiff, and that, as a consideration therefor, La Follette and Townsend each received shares of the corporate stock.\\nWe have no statute in this state permitting a corporation to enter into a partnership with a person, firm or other corporation, and, in the absence of an enactment on that subject, any agreement on the part of a corporation to enter into that relation must necessarily prove unavailing: 3 Thompson, Corp., \\u00a7 2336. A corporation, however, may under a joint venture with others transact any business that is within the scope of its legitimate powers, and thereby become liable on account of the fiduciary relation thus assumed: 3 Thompson, Corp., \\u00a7 2337; 23 Cyc. 453; Mestier v. Chevalier Paving Co., 108 La. 562 (32 South. 520). The relation referred to is usually created by express or implied agreement of the parties, but in the case at bar equity will look through the entire transaction, and, in order to promote justice, must take it for granted that a joint venture in maintaining and operating telephone line No. 6 was by operation of law created between the plaintiff and the defendant. The conclusion thus reached will make the fiduciary relation, existing by virtue of the joint venture, subject to dissolution, accounting and settlement in a court of equity in the same manner as all other cases of partnership.\\nThe defendant is entitled to assert and hold an undivided one-third interest in and to telephone line No. 6, subject, however, to payment of his ratable share of the expense of operating a three-party line, to the same extent as that chargeable to and collected from La Follette and Townsend for their use of that line. This sum the defendant has ever been and now is ready and willing to pay.\\nIt is impossible from the evidence before us to determine what compensation he should be required to make, in view of which the cause will be remanded, and, if an amicable adjustment cannot be reached, further evidence will be received, and based thereon a decree given for the reasonable sum so found to be due. The plaintiff will be enjoined from adding other patrons to the wire used in common by La Follette, Townsend and McMahan or their assigns. Nothing. here said is designed to prevent the plaintiff from putting up on line No. 6 more wires with which to supply the needs of other customers.\\nThe cause will be remanded for such further proceedings as may be necessary, not inconsistent with this opinion.\\nAffirmed and Remanded.\\nMr. Justice Benson, Mr. Justice Burnett and Mr. Justice McBride concur.\"}"

or/2427998.json

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+"{\"id\": \"2427998\", \"name\": \"CHAGNOT v. LABBE et al.\", \"name_abbreviation\": \"Chagnot v. Labbe\", \"decision_date\": \"1937-06-29\", \"docket_number\": \"\", \"first_page\": \"280\", \"last_page\": \"291\", \"citations\": \"157 Or. 280\", \"volume\": \"157\", \"reporter\": \"Oregon Reports\", \"court\": \"Oregon Supreme Court\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-11T01:08:39.440846+00:00\", \"provenance\": \"CAP\", \"judges\": \"Belt and Campbell, JJ., not sitting.\", \"parties\": \"CHAGNOT v. LABBE et al.\", \"head_matter\": \"Argued May 20;\\nreversed June 29;\\nmandate issued September 27, 1937\\nCHAGNOT v. LABBE et al.\\n(69 P. (2d) 949)\\nW. B. Layton and W. C. Ralston, both of Portland (Layton & Boyrie, of Portland, on the brief), for appellants.\\nRonald L. Reilly, of Portland, for respondent.\", \"word_count\": \"3154\", \"char_count\": \"18086\", \"text\": \"RAND, J.\\nThis was an action to recover on a promissory note executed on July 7,1930, and signed \\\"Labbe Bros., By C. Henri Labbe\\\". The note was for the sum of $12,500 and made payable to the order of the plaintiff on or before three years from the date thereof with interest thereon at the rate of 6 per cent per annum.\\nIn his amended complaint, the plaintiff joined as defendants, in the action Laura Lytle Labbe, as executrix of the estate of C. Henri Labbe, deceased, Olive T. Labbe, as executrix of the estate of Edmond Labbe, deceased, Antoine Labbe, Emma C. Labbe and Pauline Labbe, the last three being sued in their individual capacity.\\nAll the defendants except Emma C. Labbe and Pauline Labbe were served with process and appeared and answered the complaint. Emma C. Labbe and Pauline Labbe are the widow and daughter respectively of Edward B. Labbe, deceased. He died testate in 1927 and his widow has been appointed as executrix under the will. They both reside in Los Angeles, California, and neither of them has ever been served with process in this action, nor, except as hereinafter stated, have they, or either of them, voluntarily appeared in this action.\\nAfter the cause had been put at issue as to the three answering defendants, it was set for trial on July 2, 1936, and on that day the plaintiff and the three answering defendants appeared in person or by counsel and announced themselves ready for trial. Before proceeding with the trial, the court made and entered an order, which, in part, reads as follows:\\n\\\" thereupon Edw. A. Boyrie, an attorney of this Court, addressed the Court and stated in substance that he represented two defendants who had not been served with process in this case and who reside in Los Angeles, and moved, the Court that the trial of the case be continued to enable him to prepare and file an answer on behalf of the said defendants, and the Court being of the opinion that the said application for continuance is without good cause, the same is hereby denied, and\\n\\\"It is Ordered, That the parties herein proceed to trial before the Honorable T. E. J. Duffy, Circuit Judge for the 18th Judicial District, and now holding Court by assignment from the Supreme Court in this district. \\\"\\nIn compliance with the order and on the same day the cause was tried to the court without a jury, but neither Emma C. Labbe nor Pauline Labbe was present or represented by counsel at the trial. Later and on August 20, 1936, on findings made by the trial judge, a judgment was given against all the defendants jointly, including both Emma and Pauline Labbe, for the amount then due and unpaid on the note. Prom this judgment, Emma C. Labbe and Pauline Labbe, hereinafter referred to as the appellants, have appealed.\\nThe plaintiff contends that appellants' appearance by attorney on the morning of that day and request for a continuance amounted to a general appearance and gave the court jurisdiction to enter a judgment against them.\\nThe appellants at no time were in default. On July 11,1936, nine days after their appearance in court, they filed an answer denying that they were or ever had been members of the partnership firm of Labbe Brothers, or liable for any of the partnership debts. In the absence of proof to the contrary, these allegations must be assumed to be true. But, notwithstanding this, the trial court found that they were members of the firm and jointly liable for the payment of the note. We find no ground upon which these findings as to the appellants can be sustained. There was no evidence offered showing or tending to show who were or ever had been members of the partnership firm. In fact, the whole evidence consisted of the introduction of the note and proof of its nonpayment, and the case was tried upon the allegations of the complaint and the answers which had been previously filed by the three answering defendants. Nor was there any evidence offered upon the trial showing or tending to show what property, if any, now is or ever had been owned by the partnership.\\nUnder the allegations of the complaint, the original partners of Labbe Brothers consisted of Antoine, John and Blaise Labbe; that Antoine died in 1904 and left his interest in the firm to John and Blaise Labbe; that they continued to carry on the said partnership business under the name of Labbe Brothers; that John died in 1905, \\\"leaving as heirs Edmond J. Labbe, Antoine G-. Labbe and C. Henri Labbe who assumed and carried on the said partnership business with the said Blaise Labbe under the name of Labbe Brothers ' '; that Blaise died, leaving a son, Edward B. Labbe, who \\\"continued with the said heirs of John Labbe to carry on said partnership business\\\"; that in 1927 Edward B. Labbe died, \\\"leaving as his heirs Emma B. Labbe and Pauline Labbe, and that thereafter the said Emma Labbe and Pauline Labbe continued to carry on the said partnership business with Edmond J. Labbe and Antoine Gr. Labbe, said business continuing under the firm name and style of Labbe Brothers\\\"; that in 1901, Antoine, John and Blaise, the original three partners, executed a certain promissory note to plaintiff for the sum of $12,500, and that thereafter the note not being paid, it was renewed from time to time, the last renewal being made on July 7,1930; that subsequent to the death of Blaise Labbe, C. Henri Labbe acted for and on behalf of said partnership as agent and trustee therefor and carried on the business of said co-partnership for all the partners therein; that during the year 1935, C. Henri Labbe died and Laura Lytle Labbe, his wife, was duly appointed as executrix under the will; and that Edmond Labbe also died in 1935 and his wife was duly appointed as executrix under his will.\\nThe complaint further alleged that the estate of C. Henri Labbe, the estate of Edmond Labbe, Antoine Labbe, Emma Labbe and Pauline Labbe \\\"constitute a partnership and are engaged in the operation and management of said partnership business known as Labbe Brothers, and that no accounting or dissolution of the said partnership has ever been effected by any of the parties thereto\\\".\\nAs these allegations were admitted by the answers filed by the three answering defendants, the proof of the existence of the note and its nonpayment was sufficient to establish liability upon the part of the three answering defendants, but, since these allegations were all denied in the answer filed by the appellants, the proof offered was not sufficient to establish liability on the part of the appellants, or either of them.\\nOrdinarily, the death of a partner terminates the partnership as to all the members thereof. To this rule there are many exceptions. Whether upon the death of these alleged members of the partnership firm, the partnership was continued by any agreements entered into by the old partners with the heirs of those who had died, or whether the property held by these alleged partners, upon their death, under the terms of the will, continued to be partnership property and made their owners members of the firm is not established by any proof offered in the case, nor by any admission of either Emma or Pauline Labbe. Hence, the question of whether these appellants or either of them are members of the partnership firm or hold any property subject to the partnership debts has not been established by any evidence in this case.\\nThe contention that the appearance in open court on the morning of the trial of Mr. Boyrie as attorney for the appellants was a general appearance and not a special appearance, we think, should be sustained since at the time he asked the court to continue the case so that these appellants, who had not been served with summons but had been named as defendants in the action, could answer and be permitted to defend. The general rule is that an appearance for any purpose other than to question the jurisdiction of the court is general: 2 Ency., Plead. & Prac. 632. And such, we think, is the rule in this state. In Belknap v. Charlton, 25 Or. 41 (34 P. 758), the court said:\\n\\\" A defendant may appear and submit himself to the jurisdiction of the court in many ways, without either answering, demurring, or giving plaintiff written notice of his appearance. He may do this by appearing in person, or by attorney in open court, by attacking the complaint by motion, or by an application for a continuance, and in many other ways which will readily suggest themselves to one familiar with the course of judicial proceedings.\\n\\\" where the defendant appears and asks some relief which can be granted only on the hypothesis that the court has jurisdiction of the cause and the person, it is a submission to the jurisdiction of the court as completely as if he had been regularly served with process, whether such an appearance by its terms be limited to a special purpose or not If he asks the court to adjudicate upon some question affecting the merits of the controversy, or for some relief which presupposes jurisdiction of the person, and which can be granted only after jurisdiction is acquired, he will be deemed to have made a general appearance, and to have submitted himself to the jurisdiction of the court, and cannot, by any act of his, limit his appearance to a special purpose. But, if granting the relief asked would be consistent with a want of jurisdiction over the person, he may appear for a special purpose without submitting himself to the jurisdiction of the court for any other purpose.\\\" .\\nSee also Spores v. Maude, 81 Or. 11 (158 P. 169); Zobel v. Zobel, 151 Cal. 98 (90 P. 191). In the latter case, the court said:\\n\\\" It is difficult to perceive how the application of the defendant for a continuance of the hearing could operate other than as a personal appearance in the case. He was invoking the action of the court in his behalf, and that his application was unsuccessful was immaterial as far as his voluntary appearance therein was concerned. He could not consistently apply for the relief asked on any other theory than that he was submitting himself to the general jurisdiction of the court in the action. While the application made by him for a continuance was oral, this could not affect the question of its constituting an appearance. Had a written motion in that behalf been made based on affidavits, no question could possibly arise but that it constituted a personal appearance in the action, and the fact that it was made orally only rendered the method of appearance different; it did not affect the fact that it was an appearance.\\n\\\"The rule that the appearance is general applies in all cases where some action or relief is applied for, and it is just as effectually made when the appearance is to make application for a continuance or postponement of some matter pending before the court, as when invoking the action of the court in other matters concededly constituting an appearance. In Honeycutt v. Nyquist, 12 Wyo. 183, 109 Am. St. Rep. 975, 74 P. 90, it is said: 'It has frequently been held, and we think it is the recognized rule, that a request for a continuance of a cause or an agreement to that effect, either orally in open court or by a writing filed in the cause, operates as a voluntary appearance. ' ' '\\nUnder the statute (section 1-517, Oregon Code 1930) the voluntary appearance of a defendant in court is equivalent to personal service of summons upon him and, had such service been made on the morning of the day of the trial, the appellants would have been entitled to answer the complaint at any time within 10 days thereafter and this, the record shows, was done and, in their answer, the appellants denied that they were members of the partnership firm of Labbe Brothers or liable for the payment of the note. Having denied their liability, this cast upon the plaintiff the burden of establishing such liability by a preponderance of the evidence: Hamm v. Basche, 22 Or. 513, 518 (30 P. 501). Consequently, the entry of a-judgment against them on the note sued on, after they had answered and when they were not in default, without affording them any op portunity to be heard on the issues raised by their answer deprived them of their day in court and was as to them reversible error.\\nThe provisions of section 1-515, Oregon Code 1930, upon which plaintiff relies to sustain the judgment, do not obviate the error. That section provides:\\n\\\"When the action is against two or more defendants, and the summons is served on one or more, but not all of them, the plaintiff may proceed as follows:\\n1. If the action be against defendants jointly indebted upon a contract, he may proceed against the defendants served, unless the court otherwise direct; and if he recover judgment, it may be entered against all the defendants thus jointly indebted, so far only as that it may be enforced against the joint property of all and the separate property of the defendant served, and if they are subject to arrest, against the persons of the defendants served; or,\\n2. If the action be against the defendants severally liable, he may proceed against the defendants served in the same manner as if they were the only defendants;\\n3. If all the defendants have been served, judgment may be taken against any or either of them severally, when the plaintiff would be entitled to judgment against such defendant, or defendants, if the action had been against them, or any of them alone.\\\"\\nBefore that statute can apply so as to entitle the court to enter a judgment in a joint action against a defendant not served, it must be established that the obligation sued on is a joint obligation of all the defendants against whom the judgment is entered and, in the absence of such proof, the court has no authority to enter a judgment against a defendant not served. As said in 1 Freeman on Judgments, 5 Ed., section 107, under a statute such as this the obligation sued on must be the joint obligation of all the defendants. Consequently, it must be proved to be such as against all the defendants including those not served. This conforms to the rule announced in Hamm v. Basche, supra, above referred to. In the instant case, the reason for enforcing the rule is much stronger than if the appellants had been personally served with summons and had made default, for, as stated, by their answer they denied that they were liable for the payment of the note.\\nFor these reasons, the judgment appealed from, insofar as it affects these two appellants, will be reversed and the cause will be remanded to the court below for such further proceedings as are not inconsistent herewith.\\nBelt and Campbell, JJ., not sitting.\"}"

or/3027000.json

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+"{\"id\": \"3027000\", \"name\": \"STATE OF OREGON, Petitioner on Review, v. DAVID CLYDE HALL, Respondent on Review\", \"name_abbreviation\": \"State v. Hall\", \"decision_date\": \"2005-07-15\", \"docket_number\": \"CC 9701546CR; CA A109813; SC S49825\", \"first_page\": \"7\", \"last_page\": \"52\", \"citations\": \"339 Or. 7\", \"volume\": \"339\", \"reporter\": \"Oregon Reports\", \"court\": \"Oregon Supreme Court\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-09-21T20:02:18.861595+00:00\", \"provenance\": \"Harvard\", \"judges\": \"Before Carson, Chief Justice, and Gillette, Durham, Riggs, De Muniz, and Balmer, Justices.\", \"parties\": \"STATE OF OREGON, Petitioner on Review, v. DAVID CLYDE HALL, Respondent on Review.\", \"head_matter\": \"Argued and submitted November 4, 2003,\\ndecision of Court of Appeals affirmed; judgment of circuit court reversed July 15, 2005\\nSTATE OF OREGON, Petitioner on Review, v. DAVID CLYDE HALL, Respondent on Review.\\n(CC 9701546CR; CA A109813; SC S49825)\\n115 P3d 908\\nRobert M. Atkinson, Assistant Attorney General, Salem, argued the cause for petitioner on review. With him on the briefs were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.\\nPeter Gartlan, Chief Defender, Salem, argued the cause for respondent on review. With him on the briefs were Peter A. Ozanne, Executive Director, and Louis R. Miles, Deputy Public Defender, Office of Public Defense Services.\\nBefore Carson, Chief Justice, and Gillette, Durham, Riggs, De Muniz, and Balmer, Justices.\\nCARSON, C. J.\\nDurham, J., concurred in part and dissented in part, and filed an opinion in which Gillette, J., joined.\\nAppeal from Klamath County Circuit Court, Richard Rambo, Judge. 183 Or App 48, 50 P3d 1258 (2002).\\nKistler, J., did not participate in the consideration or decision of this case.\", \"word_count\": \"17066\", \"char_count\": \"107465\", \"text\": \"CARSON, C. J.\\nIn this criminal case, we decide two questions. First, under the circumstances at issue here, did the police encounter with defendant constitute an unlawful \\\"stop\\\" under ORS 131.615(1) (1995) and, consequently, also an unlawful \\\"seizure\\\" under Article I, section 9, of the Oregon Constitution? Second, if so, did that unlawful stop vitiate defendant's consent to the subsequent search of his person?\\nThe state charged defendant with possession of amphetamine, ORS 475.992(4)(b), based upon evidence that a police officer had seized during a consent search of defendant's person. The trial court denied defendant's pretrial motion to suppress the state's evidence, and a jury later convicted defendant of the charged offense. On defendant's subsequent appeal, a majority of the Court of Appeals, sitting en banc, reversed. It held that, notwithstanding the voluntariness of defendant's consent to the search, Article I, section 9, required exclusion of the challenged evidence because the police officer had stopped defendant unlawfully and then had \\\"exploited\\\" that unlawful stop to obtain defendant's consent. State v. Hall, 183 Or App 48, 50 P3d 1258 (2002). We allowed the state's petition for review. For the reasons that follow, we affirm the decision of the Court of Appeals and reverse the judgment of the trial court.\\nI. FACTS AND PROCEDURAL BACKGROUND\\nOur review of the trial court's denial of defendant's pretrial suppression motion is limited to issues of law. We are bound by the trial court's findings of historical fact if constitutionally sufficient evidence in the record supports those findings. State v. Boone, 327 Or 307, 309, 959 P2d 76 (1998). If the trial court did not make express findings respecting all pertinent historical facts, and the record contains conflicting evidence, then we presume that the trial court found facts that were consistent with its ultimate conclusion. State v. Stevens, 311 Or 119, 126-27, 806 P2d 92 (1991). With those precepts in mind, we take the following facts from the trial court's written findings and from the record.\\nAt approximately 4:00 p.m. on January 8, 1997, Klamath Falls Police Officer Deese saw defendant walking along Washington Street near Tenth Street in Klamath Falls. Deese was in uniform and was driving a marked police vehicle. As Deese drove past defendant, he noticed defendant twice glance towards him and then quickly look away. After he had passed defendant, Deese observed in his rear-view mirror that defendant had turned around to look at him several more times.\\nBased upon those observations, Deese turned his vehicle around and drove back towards defendant. Without activating his overhead lights or blocking defendant's way, Deese stopped his vehicle next to defendant and then motioned with two fingers for defendant to approach him. When defendant neared, Deese got out of his vehicle and asked defendant if he had any personal identification. Defendant handed Deese an identification card, which Deese used to radio the police dispatch for a warrant check relating to defendant.\\nAfter he had radioed the police dispatch, but before he had received back any information, Deese returned the identification card to defendant. Deese noticed that defendant appeared to be carrying something inside his jacket and asked defendant if he was carrying any weapons, knives, or illegal drugs. Defendant replied that he was not. Deese asked defendant if he minded if Deese searched him, and defendant responded \\\"no, go ahead.\\\" After patting down the exterior of defendant's jacket, Deese reached into defendant's jacket pocket, pulled out a small glass vial, and opened it. Based upon the smell and the appearance of white residue inside that vial, Deese concluded that the vial contained methamphetamine, and he arrested defendant for possession of a controlled substance. Subsequent testing established that the vial contained traces of amphetamine.\\nBefore trial, relying upon ORS 131.615(1) (1995), Article I, section 9, and the Fourth Amendment to the United States Constitution, defendant moved to suppress the evidence of the vial and its contents upon the ground that that evidence was the fruit of an unlawful police stop. He also contended that suppression was required because he had not consented to the search voluntarily. After a hearing at which both Deese and defendant testified, the trial court denied defendant's motion, concluding that Deese's encounter with defendant had not amounted to a stop and that defendant's consent to the subsequent search had been voluntary. As noted, after a trial, a jury found defendant guilty of the charged offense.\\nDefendant appealed. Before the Court of Appeals, defendant did not challenge the trial court's ruling that his consent to the search had been voluntary. Instead, he argued only that the state's evidence was inadmissible because it had derived from an unlawful police stop.\\nSitting en banc, a majority of the Court of Appeals reversed. Contrary to the trial court, the Court of Appeals unanimously concluded that Deese unlawfully had stopped defendant without reasonable suspicion of criminal activity. Hall, 183 Or App at 56, 62. In considering the effect of that illegality upon the admissibility of the evidence from the consent search that followed, that court also unanimously agreed that, notwithstanding the voluntariness of defendant's consent, Article I, section 9, required the court to exclude the state's evidence if that evidence had derived from \\\"exploitation\\\" of the unlawful stop. Id. at 58, 63. In deciding whether the state's evidence in fact had derived from \\\"exploitation\\\" of that prior illegality, however, the court divided over both the applicable analysis and the result.\\nAccording to the majority opinion, whether evidence from a consent search derives from exploitation of prior unlawful police conduct depends upon whether the police gained information from that illegality that provided the impetus for the police to seek the defendant's consent. Id. at 58 n 8, 59. Specifically, reaffirming the test articulated in that court's decision in State v. Stanley, 139 Or App 526, 912 P2d 948 (1996), rev'd on other grounds, 325 Or 239, 935 P2d 1202 (1997), the majority opinion explained that \\\"exploitation occurs when unlawful police conduct reveals information that focuses police attention on the defendant and prompts [the police] either to seek the defendant's consent or to ask questions leading to consent.\\\" Hall, 183 Or App at 60 (quoting Stanley, 139 Or App at 535; internal quotation marks omitted). In this case, the majority opinion determined that Deese had \\\"exploited\\\" the unlawful stop because that stop had allowed Deese to observe bulges in defendant's jacket, which, in turn, had prompted his request for defendant's consent to the search. Id. at 59. Based upon that determination, the majority opinion held that the trial court had erred by admitting the challenged evidence, and it reversed the trial court's judgment. Id.\\nThe dissent disagreed, taking issue both with the majority opinion's explanation of the nature of the court's inquiry in determining \\\"exploitation\\\" and with its application of that analysis to the facts of this case. In the dissent's view, whether evidence derives from police exploitation of a prior illegality is a fact-specific inquiry that depends upon the nature of the causal connection between the unlawful police conduct and the evidence sought to be suppressed. Id. at 67 (Deits, C. J., dissenting). By contrast to the majority opinion's focus upon whether the illegality affected the officer's actions, the dissent asserted that an exploitation analysis concerns whether a prior illegality affected the defendant's decision to consent. Id. at 72 (Deits, C. J., dissenting). Although stressing that no \\\"bright-line\\\" rule exists, the dissent identified a number of factors that it considered relevant to that determination, including (1) a \\\"but-for\\\" causal connection between the unlawful police conduct and the evidence sought to be suppressed; (2) whether the police had obtained information only by virtue of unlawful conduct, and whether the defendant's knowledge that the police had such information had been a substantial factor in the defendant's decision to consent; (3) the presence of intervening circumstances separating the unlawful police conduct from the evidence sought to be suppressed; and (4) the temporal proximity between the unlawful police conduct and the defendant's consent. Id. at 71 (Deits, C. J., dissenting). Because the trial court had not reached the question of exploitation in this case, the dissent would have remanded the case to the trial court for that court to determine whether the state's evidence had derived from exploitation of the unlawful stop in light of the above-described considerations. Id. at 75 (Deits, C. J., dissenting).\\nThe state petitioned this court for review, and we allowed that petition. On review, the state first argues that Deese's encounter with defendant did not amount to an unlawful stop. Secondly, the state argues that, even if Deese unlawfully had stopped defendant, the challenged evidence was not subject to suppression under Article I, section 9, because defendant voluntarily had consented to the search and defendant's voluntary act of consenting \\u2014 not the unlawful stop \\u2014 had been the source of the evidence from that search. In making that second argument, the state asks that we reconsider this court's prior case law holding that a violation of a defendant's rights under Article I, section 9, may affect the admissibility of evidence from a consent search even when the voluntariness of the defendant's consent is not at issue. See, e.g., State v. Rodriguez, 317 Or 27, 38-42, 854 P2d 399 (1993) (explaining same).\\nFor the reasons that follow, we conclude that Deese's encounter with defendant constituted an unlawful stop under ORS 131.615(1) (1995) and, consequently, also an unlawful \\\"seizure\\\" under Article I, section 9. We further decline the state's invitation to depart from this court's precedents and, instead, reaffirm that a violation of a defendant's rights under Article I, section 9, may vitiate a defendant's otherwise voluntary consent to a search. Finally, under the facts of this case, we conclude that the state failed to satisfy its burden in showing that defendant's consent was sufficiently independent of the preceding unlawful stop. Based upon those conclusions, we affirm the decision of the Court of Appeals and reverse the judgment of the trial court.\\nII. DISCUSSION\\nAs noted above, defendant's pretrial suppression motion relied upon ORS 131.615(1) (1995), Article I, section 9, and the Fourth Amendment. Because we resolve this case on state law grounds, we do not reach defendant's federal constitutional claim. See State v. Kennedy, 295 Or 260, 262, 666 P2d 1316 (1983) (court considers all questions of state law before reaching federal constitutional claims).\\nA. Applicable Oregon Law\\nIn Oregon, both statutory and constitutional law limit the authority of police to detain citizens. ORS 131.615(1) (1995), the statutory provision at issue here, provided that a police officer temporarily may restrain, or \\\"stop,\\\" a person only when the officer \\\"reasonably suspects that [that] person has committed a crime [.]\\\" Article I, section 9, protects \\\"the right of the people to be secure against \\u2022unreasonable search, or seizure [.]\\\"\\nUnless a defendant's constitutional claims could result in more complete relief, this court generally begins its analysis by first considering a defendant's statutory claims. See State v. Harberts, 331 Or 72, 81, 11 P3d 641 (2000) (so stating); see also, e.g., State v. Jacobus, 318 Or 234, 864 P2d 861 (1993) (considering whether police encounter was lawful under statutory law before considering state constitutional claims). Previously, as with constitutional limits on police authority, this court has given effect to statutes defining police authority to seize or search a person by denying the state the use of any evidence that it obtained in violation of such provisions. See State v. Davis, 295 Or 227, 236-37, 666 P2d 802 (1983) (so stating); see also, e.g., State v. Toevs, 327 Or 525, 964 P2d 1007 (1998) (suppressing evidence obtained in violation of ORS 810.410(3)(b) (1993), amended by Oregon Laws 1999, chapter 1051, section 89). Because that prior decisional law mandates such a remedy for any statutory violations in this case, we begin our analysis by considering defendant's statutory claim. In doing so, however, we observe that defendant does not contend that his rights under ORS 131.615(1) (1995) are different from, or greater than, his rights under Article I, section 9. This court also previously has explained that the analysis under ORS 131.615 (1995) and Article I, section 9, is substantially the same. See Toevs, 327 Or at 534 (so stating). Thus, we consider whether Deese's encounter with defendant violated ORS 131.615(1) (1995) and whether exclusion of the state's evidence is required in light of this court's Article I, section 9, jurisprudence. See id. (following same approach).\\nB. Lawfulness of Police Encounter with Defendant under Oregon Law\\nBecause defendant challenged the admissibility of the state's evidence upon the ground that it derived from an unlawful police stop, we begin our analysis by considering the lawfulness of Deese's encounter with defendant. This court has identified three general categories of encounters between police officers and citizens. See State v. Holmes, 311 Or 400, 407, 813 P2d 28 (1991) (so stating). The first category, \\\"mere conversation\\\" encounters, encompasses consensual interactions between police officers and citizens that require no justification and that do not implicate Article I, section 9. Id. The second category, temporary restraints of a person's liberty for investigatory purposes \\u2014 or \\\"stop[s]\\\" under ORS 131.615(1) (1995) \\u2014 constitutes a type of \\\"seizure\\\" of a person under Article I, section 9, that must be justified by a reasonable suspicion of criminal activity. Id. The third category, arrests, also constitutes a \\\"seizure\\\" of a person under Article I, section 9, and must be justified by probable cause to believe that the person arrested has committed a crime. Id.\\nAs noted above, 339 Or at 11-12 n 4, the trial court concluded that Deese's encounter with defendant had been a consensual interaction that had not restrained defendant's liberty in a manner that implicated Article I, section 9. Although we are bound by the trial court's findings of historical fact if constitutionally sufficient evidence in the record supports those findings, we must assess independently whether those findings support the trial court's legal conclusion. State v. Ehly, 317 Or 66, 75, 854 P2d 421 (1993). In this case, we note at the outset that the state concedes, and we agree, that Deese's observations of defendant repeatedly turning to look at Deese's patrol vehicle and then averting his gaze did not give rise to a reasonable suspicion that defendant was engaged in any criminal conduct. Thus, if Deese's encounter with defendant constituted a \\\"stop\\\" under ORS 131.615(1) (1995), then that encounter was unlawful, because it was not justified by the requisite level of concern respecting possible criminal activity. The question before us, then, is whether the trial court correctly ruled that Deese's encounter with defendant did not amount to a stop.\\nIn Holmes, 311 Or at 409-10, this court held that a \\\"seizure\\\" of a person under Article I, section 9, occurs when either (1) a police officer intentionally and significantly interferes with a person's liberty of movement; or (2) a person believes that his or her liberty of movement has been so restricted and such a belief is objectively reasonable under the circumstances. Police conduct interfering with a person's liberty of movement may take the form of either physical force or a show of authority. State v. Juarez-Godinez, 326 Or 1, 6, 942 P2d 772 (1997). In deciding whether police conduct implicates Article I, section 9, the pivotal consideration is whether \\\"the officer, even if making inquiries a private citizen would not, has otherwise conducted [himself or herself] in a manner that would be perceived as a nonoffensive contact if it had occurred between two ordinary citizens.\\\" Holmes, 311 Or at 410. The determination whether a person has been \\\"seized\\\" under Article I, section 9, requires a fact-specific inquiry examining the totality of the circumstances in the particular case. Id. at 408.\\nThis court's prior case law provides useful guidance as to whether Deese's encounter with defendant constituted a stop. In State v. Warner, 284 Or 147, 585 P2d 681 (1978), a police officer approached the defendant as he was leaving a tavern and asked the defendant if he would return inside. Id. at 150-51. The defendant complied with the officer's request, and, once inside the tavern, the officer asked the defendant to place his identification card on a table. Id. at 151-52. After the defendant did so, the officer explained to the defendant that the officer was investigating a robbery, and he advised the defendant that \\\"[the defendant] would be on [his] way\\\" as soon as the officer was satisfied that the defendant had no involvement in that crime. Id. at 152. On review, this court held that, at the moment that the officer told the defendant to place his identification card on the table and advised the defendant that he was the subject of a criminal investigation, the officer had seized the defendant by a show of authority for purposes of ORS 131.615 (1975), amended by Oregon Laws 1997, chapter 866, section 1, and Article I, section 9. Id. at 165.\\nIn State v. Painter, 296 Or 422, 676 P2d 309 (1984), a police officer approached the defendant on the street and requested to see the defendant's identification. The defendant responded to the officer's request by handing the officer both an expired driver license and several credit cards. While still retaining those items, the officer ran a warrant check and questioned the defendant about the location of his vehicle. Id. at 424. On review, this court held that the officer had seized the defendant when the officer had retained the defendant's identification cards because that action had the practical effect of making the defendant unable to leave. Id. at 425.\\nUnder the facts of this case, we similarly conclude that Deese's encounter with defendant here constituted a \\\"stop\\\" under ORS 131.615(1) (1995). In this case, Deese's initial actions of stopping his vehicle next to defendant and then gesturing for defendant to approach him did not intrude upon defendant's liberty of movement, because, even if Deese inconvenienced defendant, his actions did not constitute a show of authority involving conduct \\\"significantly beyond that accepted in ordinary social intercourse.\\\" Holmes, 311 Or at 410. When Deese took defendant's identification card and radioed the police dispatch for a warrant check, however, the consensual nature of that encounter dissipated, and the encounter evolved from a \\\"mere conversation\\\" encounter into a restraint upon defendant's liberty of movement. It is true that, unlike the officers in Warner and Painter, Deese promptly returned defendant's identification card. Nevertheless, when Deese did so, defendant was cognizant that Deese was investigating whether defendant was the subject of any outstanding warrants. Although the state insists to the contrary, we find it difficult to posit that a reasonable person would think that he or she was free to leave at a time when that person is the investigatory subject of a pending warrant check. We further observe that, in this case, Deese did nothing to dispel what would have been an objectively reasonable belief that defendant was restrained from leaving until Deese had received the results of the warrant check. Instead, immediately upon returning defendant's identification card, Deese questioned defendant about whether defendant was carrying any weapons, knives, or illegal drugs, and he asked defendant for consent to search defendant's person.\\nUnder those circumstances, we conclude that the trial court erred by ruling that Deese's encounter with defendant did not restrain defendant's liberty so as to constitute a \\\"stop\\\" under ORS 131.615(1) (1995). Because that restraint was not justified by a reasonable suspicion of criminal activity, we further conclude that that encounter violated both ORS 131.615(1) (1995) and Article I, section 9.\\nC. Admissibility of State's Evidence from Consent Search Following Illegal Stop under Oregon Law\\nHaving concluded that Deese's encounter with defendant was unlawful, we now must consider the effect of that illegality upon the admissibility of the state's evidence from the consent search that followed. In doing so, we first clarify the two related, but distinct, ways that a violation of a defendant's rights under Article I, section 9, may affect the validity of a defendant's subsequent consent to a search. See generally State v. Weaver, 319 Or 212, 219, 874 P2d 1322 (1994) (discussing general categories of challenges to consent searches).\\nFirst, illegal police conduct violating a defendant's rights under Article I, section 9, may negate a defendant's consent to a search upon the ground that that police conduct rendered the defendant's consent involuntary. Id. Although this court previously has stated that \\\"the burden [of persuasion] on the police to show voluntariness when consent occurs after illegal police conduct is greater than when no illegality has occurred[,]\\\" State v. Kennedy, 290 Or 493, 502, 624 P2d 93 (1981), we reiterate here that the state's burden of persuasion in establishing the voluntariness of a defendant's consent under Article I, section 9, does not vary according to the lawfulness of the circumstances in which the defendant's consent was obtained. See Stevens, 311 Or at 136-37 (defining state's burden in voluntariness inquiry under Article I, section 9). Instead, as a threshold matter in any case in which the state relies upon a defendant's consent to validate a warrantless search, the state must prove by a preponderance of the evidence that the defendant's consent was voluntary. Id. In deciding whether the state has satisfied that burden for the purposes of Article I, section 9, the test is whether, under the totality of the circumstances, the defendant's consent was an act of free will or, instead, resulted from police coercion, either express or implied. State v. Wolfe, 295 Or 567, 572, 669 P2d 320 (1983).\\nAlthough unlawful police conduct does not alter the state's burden in establishing the voluntariness of a defendant's consent, the effect of that unlawful conduct upon the defendant's capacity to exercise his or her free will is one circumstance that may be relevant to the decision whether the defendant's consent was voluntary for purposes of Article I, section 9. Rodriguez, 317 Or at 38-39. In some instances \\u2014 for example, when a defendant consented in acquiescence to a claim of lawful police authority \\u2014 the court's determination as to the lawfulness of the police conduct may bear directly upon its determination of the voluntariness of the defendant's consent. See, e.g., State v. Williamson, 307 Or 621, 626-27, 772 P2d 404 (1989) (Carson, J., concurring) (defendant's consent to search involuntary when given in response to false claim of authority); State v. Hirsch, 267 Or 613, 622, 518 P2d 649 (1974) (\\\" 'If the officers threaten only to do what the law permits them to do, the coercion that the threat may produce is not constitutionally objectionable.' \\\" (quoting State v. Douglas, 260 Or 60, 81, 488 P2d 1366 (1971) (O'Connell, C. J., dissenting)). In other circumstances, however, prior unlawful police conduct may bear upon the court's voluntariness inquiry under Article I, section 9, because that police conduct, irrespective of any determination as to its illegality, had the effect of coercing the defendant's consent. See Rodriguez, 317 Or at 38, 38 n 13 (noting same).\\nIn addition to affecting the voluntariness of a defendant's consent, this court also has recognized a related, but independent, reason why police conduct violating a defendant's rights under Article I, section 9, may vitiate a defendant's subsequent consent to a search. Specifically, similarly to the United States Supreme Court's holding in Wong Sun v. United States, 371 US 471, 83 S Ct 407, 9 L Ed 2d 411 (1963), that a defendant's voluntary statements may be the inadmissible \\\"fruits\\\" of a prior Fourth Amendment violation, this court has held that Article I, section 9, may require exclusion of evidence from an otherwise valid consent search upon the ground that the defendant's consent derived from a preceding violation of the defendant's rights under that state constitutional provision. See, e.g., Rodriguez, 317 Or at 38-42 (so stating). In Rodriguez, again similarly to the Supreme Court in Wong Sun, this court described that second inquiry as an \\\"exploitation\\\" inquiry. Id.\\nAs discussed above, in the present case, defendant has not challenged the trial court's ruling that the state established the voluntariness of his consent. Thus, the only issue before us is whether Article I, section 9, requires exclusion of the state's evidence because defendant's consent derived from \\u2014 or, stated differently, was obtained by \\\"exploitation\\\" of \\u2014 the unlawful stop. We turn to the state's arguments concerning that issue now.\\nThe state contends that, in the context of a consent search, an \\\"exploitation\\\" inquiry serves only two functions\\u2014 that is, to ensure that a defendant's consent is truly voluntary and to deter unlawful police conduct. Based upon that premise, the state asserts that, because the exclusionary rule for violations of Article I, section 9 (hereafter \\\"Oregon exclusionary rule\\\") is not predicated upon the same deterrence rationale as the Fourth Amendment exclusionary rule, this court has erred in concluding that evidence obtained as a result of a defendant's voluntary act \\u2014 such as a defendant's voluntary grant of consent to a search \\u2014 similarly may be rendered inadmissible under the Oregon exclusionary rule by a prior violation of the defendant's rights under Article I, section 9. According to the state, unless unlawful police conduct caused the defendant's consent to be involuntary, such conduct does not affect the admissibility of evidence from a consent search under the Oregon exclusionary rule, because a defendant's voluntary act of consenting necessarily operates as an independent source for any evidence that is procured in a search based upon that consent.\\nTo explain our disagreement with the state's contention that an \\\"exploitation\\\" inquiry in the context of an otherwise valid consent search is incompatible with the Oregon exclusionary rule, we begin by describing the objective \\u2014 and consequently also the operation \\u2014 of that rule. See State ex rel Juv. Dept. v. Rogers, 314 Or 114, 118-19, 836 P2d 127 (1992) (applicability of Oregon exclusionary rule determined in light of reasons for that rule). In doing so, we think it helpful first to contrast that rule with the Fourth Amendment exclusionary rule.\\nAlthough its earlier decisions sometimes suggested other considerations at work, the United States Supreme Court for many years consistently has identified deterrence of unlawful police conduct as the primary purpose underlying the exclusionary rule for violations of the Fourth Amendment. See United States v. Leon, 468 US 897, 905-06, 104 S Ct 3405, 82 L Ed 2d 677 (1984) (identifying deterrence function as basis of Fourth Amendment exclusionary rule, but acknowledging that Court's prior decisions sometimes implied that exclusionary rule was necessary corollary of Fourth Amendment). In so holding, the Supreme Court has characterized the Fourth Amendment exclusionary rule as a judicially created remedial device that applies to only those circumstances in which its remedial objectives most efficaciously will be served. See United States v. Calandra, 414 US 338, 348, 94 S Ct 613, 38 L Ed 2d 561 (1974) (so stating). Based upon that theory, the Supreme Court has defined the breadth of the Fourth Amendment exclusionary rule by assessing whether the deterrence benefits in applying that rule outweigh the costs of excluding otherwise admissible evidence. See Leon, 468 US at 909-10 (noting that analytical approach).\\nAs the state correctly recognizes, this court, by contrast, explicitly has rejected the view that the Oregon exclusionary rule is predicated upon a deterrence rationale. Davis, 295 Or at 233-37. Instead, this court has held that the Oregon exclusionary rule is a constitutionally mandated rule that serves to vindicate a defendant's personal rights. In other words, the right to be free from unreasonable searches and seizures under Article I, section 9, also encompasses the right to be free from the use of evidence obtained in violation of that state constitutional provision. See State v. Davis, 313 Or 246, 249, 834 P2d 1008 (1992) (so stating). In that vein, this court has explained that the aim of the Oregon exclusionary rule is to restore a defendant to the same position as if \\\"the government's officers had stayed within the law.\\\" Davis, 295 Or at 234. Thus, in deciding the applicability of the Oregon exclusionary rule, the critical inquiry is whether the state obtained the evidence sought to be suppressed as a result of a violation of the defendant's rights under Article I, section 9. See, e.g., State v. Smith, 327 Or 366, 379-80, 963 P2d 642 (1998) (holding evidence obtained following unlawful police conduct nevertheless admissible, because evidence not obtained by virtue of that unlawful conduct).\\nAlthough the aim of the Oregon exclusionary rule is to restore a defendant to the same position as if \\\"the government's officers had stayed within the law,\\\" Davis, 295 Or at 234, this court has rejected the notion that evidence is rendered inadmissible under Article I, section 9, simply because it was obtained after unlawful police conduct or because it would not have been obtained \\\"but for\\\" unlawful police conduct. See, e.g., Rodriguez, 317 Or at 40 (evidence not rendered inadmissible under Article I, section 9, because it would not have been obtained \\\"but for\\\" unlawful police conduct). Instead, as this court recently explained in State v. Johnson, 335 Or 511, 520-21, 73 P3d 282 (2003), after a defendant establishes the existence of a minimal factual nexus \\u2014 that is, at minimum, the existence of a 'Taut for\\\" relationship\\u2014 between the evidence sought to be suppressed and prior unlawful police conduct, the state nevertheless may establish that the disputed evidence is admissible under Article I, section 9, by proving that the evidence did not derive from the preceding illegality. To make that showing, the state must prove that either (1) the police inevitably would have obtained the disputed evidence through lawful procedures even without the violation of the defendant's rights under Article I, section 9, see, e.g., Johnson, 335 Or at 522-26 (discussing principle); (2) the police obtained the disputed evidence independently of the violation of the defendant's rights under Article I, section 9, see, e.g., Smith, 327 Or at 379-80 (discussing principle); or (3) the preceding violation of the defendant's rights under Article I, section 9, has such a tenuous factual link to the disputed evidence that that unlawful police conduct cannot be viewed properly as the source of that evidence, see, e.g., State v. Jones, 248 Or 428, 433-34, 435 P2d 317 (1967) (discussing principle).\\nIn each of those above-described circumstances, the admission of the challenged evidence does not offend Article I, section 9, because the defendant has not been disadvantaged as a result of the unlawful police conduct or, stated differently, because the defendant is not placed in a worse position than if the governmental officers had acted within the bounds of the law. In short, suppression of evidence in such circumstances would not serve to vindicate the defendant's rights under Article I, section 9, because the evidence sought to be suppressed did not result from a violation of the defendant's rights under Article I, section 9. See State v. Sargent, 323 Or 455, 462-63, 918 P2d 819 (1996) (evidence not subject to suppression under Article I, section 9, if no causal connection between evidence sought to be suppressed and unlawful police conduct); Rodriguez, 317 Or at 39 (same).\\nAs noted above, in the present case, the state contends that a defendant's voluntary act of consenting necessarily severs the causal link between evidence that the state obtains from a search based upon that consent and any antecedent violation of the defendant's rights under Article I, section 9. Starting from that premise, the state argues that the Oregon exclusionary rule does not require exclusion of evidence from a consent search whenever the defendant's consent is voluntary because the exclusion of evidence in such circumstances would not serve to vindicate the defendant's rights under Article I, section 9.\\nOn the surface, the state finds some support for that position in this court's decision in State v. Quinn, 290 Or 383, 623 P2d 630 (1981), as well as its decisions in Kennedy, 290 Or 493, scad Rodriguez, 317 Or 27. In each of those cases, this court concluded that the preceding violation of the defendant's rights under Article I, section 9, did not rob the defendant's consent of its efficacy as an independent justification for the search that produced the disputed evidence. Before examining those holdings in Kennedy and Rodriguez, we first dispel the idea that this court's Article I, section 9, holding in Quinn remains viable law.\\nIn Quinn, 290 Or 383, the police discovered evidence that implicated the defendant in a murder solely as the result of an unlawful search of the defendant's vehicle. Id. at 387. Without informing the defendant of that discovery, the police sought and obtained the defendant's consent to search the vehicle a second time. Id. at 388. The police seized the previously discovered evidence pursuant to that second search, and, after being confronted with that evidence, the defendant eventually confessed to the murder. Id. at 388-89.\\nOn review before this court, the defendant challenged the admissibility of evidence from the consent search under Article I, section 9. Purporting to embrace the analysis articulated in Wong Sun, 371 US 471, this court rejected the defendant's assertion that the evidence seized in the consent search had derived from the preceding unlawful search because, although the police had sought the defendant's consent solely as a result of the inculpatory evidence discovered from the unlawful search, the defendant had been ignorant of that unlawful search at the time when he granted his consent. Id. at 396. Notably, in reaching that holding, this court identified deterrence as the underlying purpose of the Oregon exclusionary rule and also stressed that the unlawful search had resulted from a good-faith police mistake about the state of the law. Id. at 397.\\nIn his concurring opinion in Weaver, 319 Or at 222-24, Justice Gillette cautioned that this court's conclusion in Quinn \\\"approach [ed] being (and it may in fact be) unsupportable.\\\" Specifically, in light of the fact that the police had sought the defendant's consent in Quinn only because of the discovery of inculpatory evidence during the preceding unlawful search, Justice Gillette opined that \\\"[a] more direct exploitation of illegal government activity would be difficult to posit.\\\" Id. at 224. For the reasons explained below, we agree with that view and take this opportunity to overrule expressly that part of this court's decision in Quinn.\\nThis court repeatedly has recognized that, even when a defendant's consent is voluntary \\u2014 that is, when the defendant's free will has not been overcome by police coercion\\u2014 that consent is insufficient to establish the admissibility of evidence from a warrantless search if the state cannot prove that the consent was independent of, or only tenuously related to, any preceding violation of the defendant's rights under Article I, section 9. See, e.g., Rodriguez, 317 Or at 41-42 (examining whether defendant's voluntary consent resulted from illegal arrest); State v. Dominguez-Martinez, 321 Or 206, 214, 895 P2d 306 (1995) (concluding that evidence obtained from presumably voluntary consent search during illegal traffic stop was inadmissible). Unless the state is able to make that showing, then the defendant's consent cannot operate to validate a warrantless search because the defendant's consent itself derived from a violation of the defendant's rights under that state constitutional provision. To not require suppression in such circumstances would be inconsistent with the previously described rationale underlying the Oregon exclusionary rule, that is, to place a defendant in the same position as if the governmental officers had acted within the bounds of the law. See Rodriguez, 317 Or at 39 (\\\"There may be cases in which suppression of evidence obtained during a [voluntary] consent search may be necessary to vindicate a defendant's rights that were violated by earlier, unlawful police conduct.\\\").\\nAlthough a showing of voluntariness alone is insufficient to establish the admissibility of evidence from a consent search following a violation of the defendant's rights under Article I, section 9, this court also has rejected the notion that any consent obtained after unlawful police conduct is invalid per se, no matter how tenuously related to that unlawful conduct. See id. at 39-40 (noting same). Instead, as discussed generally above, see 339 Or at 24-26 (discussing operation of Oregon exclusionary rule), the admissibility of evidence obtained in such circumstances is a fact-specific determination that depends upon the nature of the causal connection between the defendant's consent and the preceding violation of the defendant's rights under Article I, section 9. See Rodriguez, 317 Or at 39-40 (discussing same). In Rodriguez, this court framed that inquiry in this context by explaining that a causal connection requiring suppression exists \\\"when the police take advantage of the circumstances of their unlawful conduct to obtain the [defendant's] consent to search.\\\" Id. at 40. Although Rodriguez did not identify what factors to consider in making that determination, this court's Article I, section 9, jurisprudence offers some guidance. In cases decided since Quinn, one consideration that emerges is whether the police sought the defendant's consent only as the result of knowledge of inculpatory evidence stemming from a prior unlawful search.\\nThis court's decision in State v. Carston, 323 Or 75, 913 P2d 709 (1996), illustrates the application of that consideration. In Carston, an informant had advised the police about a scheduled drug sale after he illegally intercepted a cordless telephone conversation between the codefendants. Id. at 78. The informant reported that a man had made arrangements to buy $300 of \\\"really good stuff' and had informed the seller that he would be driving a four-door Suzuki. Id. Based upon that information, the police went to the residence where the drug transaction was scheduled to take place and then followed a four-door Suzuki as it drove away from that residence. Id. The police subsequently stopped that vehicle for a traffic violation and, during that stop, asked one of the defendants for his consent to search the vehicle. Id. at 79. The defendant granted his consent, and the police discovered drugs and drug paraphernalia in a closed container in the vehicle. Id. Based in part upon that evidence, the state charged the defendants with manufacture and delivery of a controlled substance, ORS 475.992.\\nBefore trial, among other things, the defendants moved to suppress the evidence from the consent search. The trial court first determined that the initial stop of the vehicle had been lawful and that officer safety concerns had justified both a patdown search of the defendants and a limited search of the passenger compartment of the vehicle for weapons. Id. at 86. The trial court then went on to rule, however, that the evidence derived from the consent search nevertheless was inadmissible because, after assuring their safety, the officers had questioned the defendants about illicit drugs and had sought the defendant's consent to search solely based upon information illegally obtained by the informant. Id. On review, this court agreed with the trial court that, in light of that causal link between the defendant's consent and the prior unlawful search, suppression of the evidence was required. Id. at 86-87.\\nApplying that same reasoning to the facts at issue in Quinn, it is apparent that \\u2014 although capable of reconciliation with the deterrence rationale of the Fourth Amendment exclusionary rule \\u2014 this court's conclusion in that case is untenable under Article I, section 9. Although the police in Quinn had conducted their first unlawful search of the defendant's vehicle under the mistaken belief that they were authorized to do so, the inculpatory evidence discovered during that search unquestionably derived from a violation of the defendant's rights under Article I, section 9. Solely as a result of that violation, the police then sought the defendant's consent to search his vehicle a second time in order to seize that previously discovered evidence. In light of that causal link between the violation of the defendant's rights under Article I, section 9, and the defendant's subsequent consent, the police cannot be said to have obtained the defendant's consent independently of their prior unlawful conduct, and, for that reason, that consent could not have operated as an independent justification for the search under Article I, section 9.\\nHaving clarified why Quinn does not assist the state here, we now turn to this court's decisions in Kennedy and Rodriguez. By contrast to the facts at issue in Quinn, the governmental officers in Kennedy and Rodriguez did not seek the defendant's consent only as a result of knowledge of inculpatory evidence gained from a prior unlawful search. Instead, each case involved the more difficult question of the validity of a defendant's consent given during a purportedly unlawful seizure. As discussed below, contrary to other of its precedents, this court concluded in both cases that the violation of the defendant's rights under Article I, section 9, had not destroyed the efficacy of the defendant's consent to the search that produced the disputed evidence. We examine the basis of each of those holdings in more detail below.\\nIn Kennedy, 290 Or 493, two police officers approached the defendant as he was preparing to exit the Portland airport and informed him that they had information that he might be in possession of illegal drugs. The defendant denied that allegation and then, without any prompting, asked the officers if they wished to search his luggage. Id. at 496. The officers accepted his invitation and subsequently discovered a small vial with cocaine residue in the defendant's bag. Id.\\nOn review, after assuming that the police interaction with defendant had been unlawful, this court determined that the evidence of the vial nevertheless was admissible based upon \\\"the absence of any coercive circumstances surrounding [the] defendant's consent, and [the] defendant's volunteering of consent, with no request by the police.\\\" Id. at 506. In reaching that conclusion, this court stated that the validity of the defendant's consent in such circumstances hinged upon only a determination of voluntariness, but added that the state faced a higher burden in establishing voluntariness when the defendant's consent followed 'unlawful police conduct. Id. at 502. Although we reject that formulation, see 339 Or at 20-21, we do not quarrel with the underlying concern that it expresses \\u2014 namely, that Article I, section 9, requires a careful examination of the causal connection between a preceding illegality and the defendant's consent when the police gain a defendant's consent after unlawful police conduct. Although framing that issue as one concerning \\\"exploitation,\\\" this court confirmed the necessity of such an inquiry in its decision in Rodriguez.\\nIn Rodriguez, 317 Or 27, after presenting the defendant with an arrest warrant that may have been unlawful, the governmental agent warned the defendant of his rights to remain silent and to have counsel, and then asked the defendant whether he had any drugs or guns in his apartment. The defendant responded to that question by stating \\\"No, go ahead and look.\\\" Id. at 30. When the agent questioned the defendant whether he had intended to authorize a search, the defendant repeated his willingness to allow the officers to search his apartment, and the agents subsequently discovered two guns. Id.\\nOn review, after again assuming that the defendant's arrest had been unlawful, this court concluded that suppression of the guns nevertheless was not required under Article I, section 9. After clarifying that the voluntariness of the defendant's consent was not in question, this court explained that the issue, instead, was whether the defendant's consent had derived from \\u2014 or, in the words of Rodriguez, had been obtained by \\\"exploitation\\\" of \\u2014 the preceding purportedly unlawful seizure. Id. at 38-40. In answering that question in that case, this court examined the circumstances of the seizure and observed that the defendant spontaneously had offered his consent to the search. Id. at 41. Although the court recognized that, but for the unlawful arrest, the agent would not have been in a position to accept the defendant's offer to allow a search, this court concluded that that causal connection alone was too tenuous to require suppression. Id.\\nEven if rejecting the state's view that voluntariness alone is sufficient to establish the admissibility of evidence from a consent search following an unlawful seizure, the above-described conclusion in Rodriguez, like the conclusion in Kennedy, could be viewed as supporting the state's position that suppression is not required in this case. Similarly to both Kennedy and Rodriguez, there is no evidence that Deese observed any sign of criminal conduct during his illegal detention of defendant that led to his request for defendant's consent to a search. This court's decisions in Kennedy and Rodriguez, however, do not stand for the proposition that suppression is required only if the unlawful police conduct had allowed the discovery of inculpatory evidence that led to a request for consent. Instead, this court's case law both before and after Rodriguez makes clear that Article I, section 9, also requires the consideration of the effect of the unlawful police conduct upon the defendant's decision to consent, even if that conduct did not rise to the level of overcoming the defendant's free will. Several cases illustrate how this court has applied that consideration.\\nAlthough it was based upon Fourth Amendment precedents, this court's decision in State v. Olson, 287 Or 157, 598 P2d 670 (1979), is on point. In that case, the defendant made inculpatory statements to the police after officers had made a forcible nighttime entry into his residence and arrested him. After determining that both the entry and the subsequent arrest has been unlawful, this court concluded that the state had failed to show that those statements had not derived from that preceding unlawful police conduct and, for that reason, concluded that the statements were inadmissible under Article I, section 9.\\nThis court reached a similar conclusion in Dominguez-Martinez, 321 Or 206. After lawfully stopping the defendant for making unsignaled lane changes, the officer tested the turn signals on the defendant's vehicle and discovered that one of them was defective. Id. at 208. Rather than issue a citation, the officer instructed the defendant to repair the signal and then advised the defendant that he was free to go. Id. After making that statement, however, the officer continued to stand with his arm on the door of the defendant's vehicle and then asked for the defendant's consent to search the vehicle. Id. at 208-09. The defendant agreed, and the officer subsequently discovered illegal drugs in the vehicle. Id. at 209. On review, after finding that the officer had exceeded his statutory authority to detain the defendant, this court rejected the state's argument that, under the facts of that case, the defendant's voluntary consent nevertheless established the admissibility of the evidence from the search. Id. at 214.\\nThis court's decision in Toevs, 327 Or 525, offers a final example. In that case, the officers stopped the defendant for driving at night without the use of headlights. After running a records check and instructing the defendant to turn on his lights, the officer advised the defendant that he was free to go. Id. at 529. After making that statement, however, the officer then immediately asked the defendant for his consent to search the vehicle and questioned the defendant about whether he was carrying any illegal drugs. Id. The defendant initially withheld his consent to a search, but, after further questioning, he admitted to the officers that he was in possession of drugs. Id. On review, this court determined that the officer unlawfully had seized the defendant at the time that he requested the defendant's consent and questioned the defendant. Id. at 537. Without considering voluntariness, this court further determined that, under the facts of that case, that illegality required the suppression of the evidence discovered as a result of the defendant's statements. Id. at 537-38.\\nAs the above-described cases illustrate, this court's conclusions in Kennedy and Rodriguez that suppression was not required to vindicate those defendants' rights must be understood in light of the specific facts of each of those cases \\u2014 particularly, the facts that those defendants both had volunteered to allow a search without any police prompting and, in Rodriguez, that the police had provided the defendant with Miranda warnings before questioning him about drugs or weapons. In the absence of such intervening circumstances \\u2014 or other circumstances mitigating the effect of the unlawful police conduct \\u2014 this court has required suppression under facts similar to those at issue in Kennedy and Rodriguez. See, e.g., State v. Amaya, 336 Or 616, 627, 89 P3d 1163 (2004) (explaining necessity of considering legality of stop in deciding admissibility of defendant's presumably voluntary statements by stating that, \\\"if [the officer] had seized [the] defendant in violation of her Article I, section 9, rights before he questioned her about the bag, then his questions about the bag also were unlawful, and the evidence that the state obtained as a result of those questions must be suppressed\\\"); State v. Morton, 326 Or 466, 470, 953 P2d 374 (1998) (when defendant dropped container only after police had begun taking defendant into custody, \\\"the state cannot separate the act of arrest from the dropping of the container; the seizure [of the container] can be proper only if the arrest itself was authorized by a valid warrant\\\"); compare with Douglas, 260 Or 60 (regardless of legality of police conduct, no suppression is required when defendant granted his consent in response to prompting by his brother-in-law, rather than police actions).\\nWith that background in mind, we return to this case. In doing so, we first summarize our preceding discussion: After a defendant shows a minimal factual nexus between unlawful police conduct and the defendant's consent, then the state has the burden to prove that the defendant's consent was independent of, or only tenuously related to, the unlawful police conduct. Deciding whether the state has satisfied that burden requires a fact-specific inquiry into the totality of the circumstances to determine the nature of the causal connection between the unlawful police conduct and the defendant's consent. A causal connection requiring suppression may exist because the police sought the defendant's consent solely as the result of knowledge of inculpatory evidence obtained from unlawful police conduct. A causal connection requiring suppression also may exist because the unlawful police conduct, even if not overcoming the defendant's free will, significantly affected the defendant's decision to consent. Although determining the existence of such a causal connection requires examination of the specific facts at issue in a particular case, we view several considerations to be relevant to that determination, including (1) the temporal proximity between the unlawful police conduct and the defendant's consent, (2) the existence of any intervening circumstances, and (3) the presence of any circumstances \\u2014 such as, for example, a police officer informing the defendant of the right to refuse consent \\u2014 that mitigated the effect of the unlawful police conduct. With those considerations in mind, we now decide whether the state has satisfied its burden in this case.\\nIn our view, the circumstances at issue here more closely resemble the circumstances at issue in Dominguez-Martinez and Toevs, rather than the circumstances at issue in Kennedy and Rodriguez. Similarly to the defendants in Dominguez-Martinez and Toevs, defendant here consented to the search during an unlawful stop. Unlike the defendants in Rodriguez and Kennedy, defendant's grant of consent was not spontaneous but, instead, was made only in response to Deese's request that defendant allow a search. Deese made that request immediately after he had questioned defendant about whether defendant was carrying any weapons or illegal drugs and while he was waiting for the results of defendant's warrant check. Given the close temporal proximity between the illegal detention and defendant's consent, and the absence of any intervening circumstances or other circumstances mitigating the effect of that unlawful police conduct, we cannot say that the state has proved that defendant's decision to consent, even if voluntary, was not the product of the preceding violation of defendant's rights under Article I, section 9. We therefore conclude that the unlawful seizure of defendant vitiated his consent to the search and, for that reason, the evidence from that search is inadmissible under Article I, section 9.\\nIII. CONCLUSION\\nIn sum, we conclude that, under the facts of this case, Deese's encounter with defendant constituted an unlawful stop under ORS 131.615(1) (1995) and, consequently, also an unlawful \\\"seizure\\\" under Article I, section 9. We also reaffirm that, to vindicate a violation of a defendant's rights under Article I, section 9, evidence from a search following an otherwise valid consent is subject to suppression under the Oregon exclusionary rule if the defendant's consent is the product of preceding unlawful police conduct. Finally, under the facts of this case, we conclude that the state failed to satisfy its burden of proving that defendant's consent was independent of, or only tenuously related to, the preceding unlawful stop. Based upon those conclusions, we affirm the decision of the Court of Appeals and reverse the judgment of the trial court.\\nThe decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed.\\nORS 131.615(1) (1995), amended by Oregon Laws 1997, chapter 866, section 1, provided, in part:\\n\\\"A peace officer who reasonably suspects that a person has committed a crime may stop the person and, after informing the person that the peace officer is a peace officer, make a reasonable inquiry.\\\"\\nThe 1997 Legislative Assembly amended that statute to provide that an officer also may stop a person to make a reasonable inquiry if the officer reasonably suspects that that person \\\"is about to commit a crime!.]\\\" Or Laws 1997, ch 866, \\u00a7 1. That amendment does not apply to this proceeding.\\nArticle I, section 9, of the Oregon Constitution provides:\\n\\\"No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.\\\"\\nThe text of both ORS 131.615(1) (1995) and Article I, section 9, is set out at 339 Or at 9 n 1. The Fourth Amendment provides:\\n\\\"The right of the people to be secure in their persons, houses, papers, and effects, against -unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.\\\"\\nThe Fourth Amendment is applicable to the states through the Due Process Clause of the Fourteenth Amendment. Mapp v. Ohio, 367 US 643, 655, 81 S Ct 1684, 6 L Ed 2d 1081 (1961).\\nDefendant originally was indicted in case number 97-0081-CR, and, following a hearing, the trial court denied defendant's pretrial suppression motion in that case. Subsequently, on the state's motion, the court dismissed that indictment without prejudice, because the indictment erroneously had charged defendant with possession of methamphetamine, rather than amphetamine. The state then charged defendant with possession of amphetamine in case number 97-1546-CR. Because the trial court already had heard and denied defendant's suppression motion relating to the vial in case number 97-0081-CR, the trial court in case number 97-1546-CR declined to rehear that motion and, instead, adhered to the same ruling after taking judicial notice of the record from the first suppression hearing.\\nSpecifically, in its letter ruling, the trial court stated:\\n\\\"This case is similar to State ex rel [Juv.] Dept. v. Fikes, 116 Or App 618[,842 P2d 807] (1992). For the reasons set forth therein, Defendant's Motion to Suppress is denied.\\\"\\nIn Fikes, 116 Or App at 623-24, the Court of Appeals held that a youth had not been \\\"stopped\\\" under ORS 131.615 (1991), amended by Oregon Laws 1997, chapter 866, section 1, or \\\"seized\\\" under Article I, section 9, or the Fourth Amendment when a police officer had approached that youth on the street and had asked that youth for consent to search his person. The court further held that the subsequent search had been lawful because the youth voluntarily had given his consent to the search. Id. at 624-25.\\nBefore the Court of Appeals, defendant also assigned error to the trial court's denial of his motion to dismiss for lack of a speedy trial under OBS 135.747 and Article I, section 10, of the Oregon Constitution. The Court of Appeals rejected that assignment of error without discussion, Hall, 183 Or App at 50, and defendant did not petition this court for review of that part of the Court of Appeals decision.\\nIn State v. Rodriguez, 317 Or 27, 854 P2d 399 (1993), this court used the phrase \\\"unlawful police conduct\\\" as shorthand to describe a governmental act that violated a defendant's rights under Article I, section 9. See id. at 38 n 12 (so noting). Throughout this opinion, when we use that same phrase, we use it for that same meaning.\\nJudge Brewer joined the majority opinion in holding that Article I, section 9, required the exclusion of the state's evidence. He, however, authored a separate concurring opinion to state his agreement with the dissent that a defendant's reasons for consenting also may be relevant to the determination whether evidence procured during an otherwise valid consent search is inadmissible because of police exploitation of a prior illegality. Hall, 183 Or App at 61-62 (Brewer, J., concurring).\\nORS 131.605(5) defines the meaning of the term \\\"stop,\\\" contained in ORS 131.615(1) (1995), as \\\"a temporary restraint of a person's liberty by a peace officer lawfully present in any place.\\\"\\nIn 1997, the legislature passed Senate Bill (SB) 936 (1997), which contained a provision, now codified at ORS 136.432, that limits the exclusion of evidence as an available remedy for violations of statutory provisions. Or Laws 1997, ch 313, \\u00a7 1. Because defendant committed his crime on January 8, 1997, and because the ex post facto clause in Article I, section 21, of the Oregon Constitution precludes the application of ORS 136.432 to crimes committed before its effective date of June 12, 1997, we do not consider the effect of ORS 136.432 here. See Or Laws 1997, ch 313 (providing effective date of June 12, 1997); State v. Fugate, 332 Or 195, 215, 26 P3d 802 (2001) (ex post facto clause in Article I, section 21, precludes application of exclusionary limits contained in SB 936 to crimes committed before its effective date).\\nWe acknowledge that, by requiring the police to have a reasonable suspicion that the person \\\"has committed a crime!,]\\\" ORS 131.615(1) (1995) imposed greater restrictions upon police authority to stop a person than does Article I, section 9. See State v. Cloman, 254 Or 1, 6, 456 P2d 67 (1969) (to stop person, police must have reasonable suspicion that person \\\"[has] a connection with criminal activity\\\"); see also State v. Valdez, 277 Or 621, 625 n 4, 561 P2d 1006 (1977) (observing that, although ORS 131.615 (1973) attempted to codify Cloman, 254 Or 1, and Terry v. Ohio, 392 US 1, 88 S Ct 1868, 20 L Ed 2d 889 (1968), statute adopted narrower rule because legislature omitted words \\\"or is about to commit [a crime]\\\" from final text of statute). As discussed further below, 339 Or at 17, however, that difference is of no consequence here, because the parties do not dispute that Deese lacked a reasonable suspicion that defendant either had been involved in, or was about to become involved in, any criminal activity at the time of the encounter at issue in this case.\\nORS 131.605 defines the term \\\"reasonably suspects\\\" as \\\"a belief that is reasonable under the totality of the circumstances existing at the time and place the peace officer acts\\nIn Wong Sun, the Supreme Court refined the \\\"fruit of the poisonous tree\\\" doctrine that is applicable under the Fourth Amendment exclusionary rule, stating:\\n\\\"We need not hold that all evidence is 'fruit of the poisonous tree' simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is 'whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.' \\\"\\n371 US at 487-88 (quoting Maguire, Evidence of Guilt, 221 (1959)). Although Wong Sun concerned the admissibility of inculpatory statements that two defendants had made after illegal arrests, the Supreme Court appears to have applied that same reasoning in deciding the admissibility of evidence from a consent search following a violation of the defendant's rights under the Fourth Amendment. See Florida v. Royer, 460 US 491, 507-08, 103 S Ct 1319, 75 L Ed 2d 229 (1983) (\\\"Because we affirm the conclusion that [the defendant] was being illegally detained when he consented to the search of his luggage, we agree that the consent was tainted by the illegality and was ineffective to justify the search.\\\"). Lower federal courts also have presumed that the analysis from Wong Sun and its progeny concerning the admissibility of confessions under the Fourth Amendment exclusionary rule, see, e.g., Brown v. Illinois, 422 US 590, 95 S Ct 2254, 45 L Ed 2d 416 (1975), applies equally in the context of consent searches. See, e.g., United States v. Melendez-Gonzalez, 727 F 2d 407 (5th Cir 1984).\\nFor an overview of the history of the exclusionary rule under the Fourth Amendment and under Article I, section 9, see generally Ronald W. Messerly, Development of the Right to Exclude Illegally Seized Evidence in Oregon under Article I, section 9 of the Oregon Constitution, 25 Willamette L Rev 697 (1989).\\nBefore the Supreme Court held in Mapp, 367 US 643, that the Fourth Amendment exclusionary rule applies to the states, this court had approved of the use of that rule in Oregon state courts based upon its agreement with the Supreme Court in Weeks v. United States, 232 US 383, 34 S Ct 341, 59 L Ed 652 (1914), that such a rule was necessary to effectuate constitutional protections against unreasonable searches and seizures. See State v. Laundy, 103 Or 443, 494, 204 P 958, 206 P 290 (1922) (stating that Oregon state courts should apply exclusionary rule for same reasons that Supreme Court articulated in Weeks)', see also Davis, 295 Or at 233-34 (noting same history of Oregon exclusionary rule). Although cases subsequent to Laundy sometimes suggested that the Oregon exclusionary rule might apply to deter future constitutional violations, in a sequence of cases beginning with Davis, 295 Or 227, this court reaffirmed its view that, although deterrence may be a benefit of the Oregon exclusionary rule, the constitutional basis for that rule is to vindicate the defendant's personal rights. See, e.g., State v. Kosta, 304 Or 549, 553, 748 P2d 72 (1987) (personal rights); State v. Tanner, 304 Or 312, 315, 745 P2d 757 (1987) (same); compare with State v. Quinn, 290 Or 383, 397, 623 P2d 630 (1981) (stating exclusionary rule under Article I, section 9, should be applied only as broadly as necessary to accomplish its \\\"prophylactic\\\" purposes).\\nA number of commentators have challenged the correctness of such a reading of Wong Sun. See, e.g., Wayne R. LaPave, Search and Seizure: A Treatise on the Fourth Amendment, IV-88, \\u00a7 8.2(d) (4th ed 2004) (arguing that, -under Wong Sun, if \\\" [a] prior illegal search provides a significant lead in terms of indicating what other evidence [the police] ought to seek or where they ought to seek it, then a consent obtained by exploitation of that information would constitute a fruit of the earlier illegal search. This would be true even if the consenting party were unaware of the earlier search.\\\"); Joseph G. Casaccio, Illegally Acquired Information, Consent Searches, and Tainted Fruit, 87 Colum L Rev 842 (1987) (stating same).\\nTo the extent that the above-quoted statement from Rodriguez may be understood to suggest that a police officer's state of mind is relevant under Article I, section 9, we do not endorse it. See State v. Ainsworth, 310 Or 613, 621, 801 P2d 749 (1990) (\\\"Article I, section 9, prohibits certain governmental action, not certain governmental states of mind. The Oregon Constitution does not require an inquiry into the observing officer's thoughts to determine whether the officer's conduct unconstitutionally violates a defendant's Article I, section 9, rights.\\\").\\nAlthough Carston concerned a statutory violation, the reasoning in that opinion is equally applicable in this context.\\nAs discussed previously, 339 Or at 13, the majority opinion from the Court of Appeals determined that Deese had \\\"exploited\\\" the unlawful stop because that stop had allowed him to observe bulges in defendant's jacket. The record, however, does not support a finding that anything about those bulges (which had resulted from defendant's mittens) revealed any criminal conduct. For that reason, we disagree with the majority opinion from the Court of Appeals that Deese's observation of the bulges in defendant's jacket is significant in this case.\\nAlthough Dominguez-Martinez concerned a statutory violation, the reasoning in that opinion is equally applicable in this context.\\nToevs also concerned a statutory violation, but the reasoning in that opinion is equally applicable in this context.\\nAs noted previously, the dissenting opinion from the Court of Appeals identified some of those same considerations. See Hall, 183 Or App at 71-72 (Diets, C. J., dissenting). In Brown v. Illinois, 422 US 590, 95 S Ct 2254, 45 L Ed 2d 416 (1975), the United States Supreme Court also identified some of those considerations as relevant to deciding the admissibility of a defendant's voluntary statements following a Fourth Amendment violation. See id. at 603-04 (in deciding whether Fourth Amendment exclusionary rule requires suppression of defendant's voluntary statements following unlawful arrest, court should consider whether police provided defendant with Miranda warnings, along with \\\"[t]he temporal proximity of the arrest and the confession, the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct\\\"). As discussed previously, 339 Or at 23-25, the Brown factor of \\\"purpose and flagrancy of the official misconduct\\\" relates to only the deterrence rationale of the Fourth Amendment exclusionary rule and has no applicability to the exclusionary rule under Article I, section 9. The other considerations that the Supreme Court identified in Brown \\u2014 namely, whether the police had provided the defendant with Miranda warnings (or, in the case of a consent search, with a warning that the defendant had the right to refuse consent), the temporal proximity between the illegality and the defendant's confession or consent, and the presence of intervening circumstances \\u2014 relate to the causal connection between the preceding illegality and the defendant's confession or consent, and, for that reason, also are relevant to the decision whether exclusion is required to vindicate a defendant's rights under Article I, section 9.\"}"

or/3640461.json

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+"{\"id\": \"3640461\", \"name\": \"In the Matter of J. C., Alleged to be a Mentally Ill Person. STATE OF OREGON, Respondent, v. J. C., Appellant\", \"name_abbreviation\": \"State v. J. C.\", \"decision_date\": \"2008-04-16\", \"docket_number\": \"060969389; A135179\", \"first_page\": \"423\", \"last_page\": \"424\", \"citations\": \"219 Or. App. 423\", \"volume\": \"219\", \"reporter\": \"Oregon Reports, Court of Appeals\", \"court\": \"Oregon Court of Appeals\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T20:07:26.771396+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Edmonds, Presiding Judge, and Wollheim, Judge, and Sercombe, Judge.\", \"parties\": \"In the Matter of J. C., Alleged to be a Mentally Ill Person. STATE OF OREGON, Respondent, v. J. C., Appellant.\", \"head_matter\": \"Submitted on March 7,\\nreversed April 16, 2008\\nIn the Matter of J. C., Alleged to be a Mentally Ill Person. STATE OF OREGON, Respondent, v. J. C., Appellant.\\nMultnomah County Circuit Court 060969389; A135179\\n182 P3d 324\\nLiza Langford filed the brief for appellant.\\nHardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Tiffany Keast, Assistant Attorney General, filed the brief for respondent.\\nBefore Edmonds, Presiding Judge, and Wollheim, Judge, and Sercombe, Judge.\\nPER CURIAM\", \"word_count\": \"168\", \"char_count\": \"1040\", \"text\": \"PER CURIAM\\nAppellant seeks reversal of a judgment recommitting her as a mentally ill person for a period not to exceed 180 days. ORS 426.307. Appellant argues that the record does not establish by clear and convincing evidence that she is unable to provide for her basic needs because of her mental disorder. See ORS 426.005(l)(d). The state concedes that the evidence is insufficient for involuntary commitment and that the judgment should be reversed. On de novo review of the record, we accept the state's concession and reverse.\\nReversed.\"}"

or/4008168.json

@@ -0,0 +1 @@
+"{\"id\": \"4008168\", \"name\": \"STATE OF OREGON, Plaintiff-Respondent, v. JOHN ALLEN OVENDALE, Defendant-Appellant\", \"name_abbreviation\": \"State v. Ovendale\", \"decision_date\": \"2012-12-05\", \"docket_number\": \"09C48935; A146835\", \"first_page\": \"620\", \"last_page\": \"633\", \"citations\": \"253 Or. App. 620\", \"volume\": \"253\", \"reporter\": \"Oregon Reports, Court of Appeals\", \"court\": \"Oregon Court of Appeals\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T17:25:14.296641+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Armstrong, Presiding Judge, and Haselton, Chief Judge, and Duncan, Judge.\", \"parties\": \"STATE OF OREGON, Plaintiff-Respondent, v. JOHN ALLEN OVENDALE, Defendant-Appellant.\", \"head_matter\": \"Argued and submitted March 21,\\naffirmed December 5, 2012\\nSTATE OF OREGON, Plaintiff-Respondent, v. JOHN ALLEN OVENDALE, Defendant-Appellant.\\nMarion County Circuit Court\\n09C48935; A146835\\n292 P3d 579\\nJason E. Thompson argued the cause for appellant. With him on the brief was Ferder Casebeer French & Thompson, LLP.\\nPamela J. Walsh, Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.\\nBefore Armstrong, Presiding Judge, and Haselton, Chief Judge, and Duncan, Judge.\\nARMSTRONG, P. J.\", \"word_count\": \"4467\", \"char_count\": \"27797\", \"text\": \"ARMSTRONG, P. J.\\nDefendant appeals a judgment of conviction for one count of first-degree sodomy, ORS 163.405, and one count of first-degree sexual abuse, ORS 163.427. He raises four assignments of error, all but one of which we reject without discussion. We write to address only defendant's contention that the trial court erred in admitting a diagnosis of \\\"sexual abuse\\\" into evidence during his jury trial. Defendant argues that, under State v. Southard, 347 Or 127, 218 P3d 104 (2009), a diagnosis of \\\"sexual abuse\\\" is never admissible in a criminal prosecution for sexual abuse. Alternatively, he argues that such a diagnosis is admissible only when supported by physical findings of an injury on the body of the alleged victim. We conclude that Southard did not bar the admission of the diagnosis and, accordingly, affirm.\\nBecause defendant was convicted by a jury, we summarize the facts in the light most favorable to the state. State v. Vidal, 245 Or App 511, 513, 263 P3d 364 (2011), rev den, 351 Or 761 (2012). The facts underlying defendant's conviction involve multiple episodes of abuse, involving different children. We set out only the facts necessary to address defendant's remaining assignment of error.\\nOne evening while his fianc\\u00e9e was at work, defendant was watching her 4-year-old son, A. When A's mother returned home at approximately 11:00 p.m., she found A awake and downstairs with defendant, which was unusual. A's mother took A upstairs into his bedroom to put him to bed. There, A told her that defendant had \\\"put his peepee inside of his bottom.\\\" A's mother \\\"freaked out\\\" and took A into her bedroom, where, in front of her mirrored closet doors, she found fecal matter on the floor. A's mother asked A what had happened, and A demonstrated that he had been on the bedroom floor, on all fours, and explained that defendant had assaulted him, that it had hurt, and that it \\\"made him poop.\\\"\\nA's mother went downstairs and confronted defendant with A's statements. Then, in front of A, defendant called the whole episode a misunderstanding. He said that A had wet his pants in the car, that defendant had given A a bath, and that A was probably talking about defendant's actions in cleaning up after that accident. By that time, A's mother was noticeably upset and crying, and A said that he might have been mistaken. A's mother was suspicious of defendant's explanation, however, knowing that A had been potty trained for \\\"quite some time\\\"; she checked A's clothing and car seat, and they were dry. A continued to vacillate on whether the abuse had occurred, but, after his mother stressed the importance of telling the truth, he ultimately confirmed that the assault had occurred.\\nThat night, A's mother took him to the emergency room. There, a doctor performed a brief visual examination and saw no signs of trauma. He explained, however, that the rectum expands to let large objects pass and, therefore, that the type of abuse described by A would not necessarily cause any physical trauma. The following day, after observing orange discoloration in A's stool, A's mother again took him to the emergency room. The same doctor performed a second examination, consisting of a rectal examination and chemical test of A's stool. Neither examination revealed blood or signs of trauma.\\nThereafter, a nurse practitioner at Liberty House examined A and found no physical irregularities or signs of trauma. Following the examination, the nurse observed another Liberty House employee conduct an interview with A, where A again stated that defendant had anally penetrated him and that \\\"poop\\\" had come out. The nurse also spoke with A's mother, who confirmed that she had found feces on the bedroom floor. Ultimately, the nurse diagnosed A with \\\"sexual abuse,\\\" relying upon A's statements and the fact that A had defecated on the floor.\\nDefendant was charged with one count of first-degree sodomy and four counts of first-degree sexual abuse. Two of the counts \\u2014 one count of first-degree sodomy and one count of first-degree sexual abuse \\u2014 arose out of defendant's abuse of A. Defendant pleaded not guilty to all counts and proceeded to a jury trial.\\nAt trial, A testified to spare, but consistent, details of the sexual abuse. He testified that defendant had touched him in the \\\"back side\\\" with his \\\"wiener\\\" while they were upstairs in his mother's bedroom. He testified that he and defendant had been naked and that he had defecated on the floor. A confirmed that, although he could remember only \\\"a little\\\" about the incident, he could confidently tell the jury that the abuse had occurred and that he had an independent memory of the events.\\nGiven the absence of discernible physical trauma during A's medical evaluations, the fecal matter that A's mother discovered on her bedroom floor gained heightened significance at trial. The nurse practitioner, who had examined A at Liberty House, testified that she had found it \\\"interesting and somewhat concerning\\\" that feces had been found on the bedroom floor. She explained that any stimulation of the rectal muscles can elicit a bowel movement if there is stool in the rectum. Given that A had no prior history of defecating in inappropriate places, the nurse explained that she found the fecal matter \\\"concerning that something had happened to his anal area.\\\"\\nLikewise, the emergency room doctor who initially examined A acknowledged that the fecal matter was potential physical evidence that something had penetrated A's anus. The doctor testified that he had not found the fecal matter relevant during his initial examination of A, but acknowledged that anal penetration may stimulate the rectal muscles and cause a bowel movement. He testified that he had not considered that possibility at the time of his initial examination.\\nThe state ultimately sought to admit the Liberty House nurse practitioner's diagnosis of sexual abuse as to A. Defendant objected, arguing that, under Southard, a medical expert cannot give a diagnosis of sexual abuse in the absence of physical findings of an injury. In response, the state argued that Southard's holding was narrow; the Supreme Court addressed only \\\"whether a diagnosis of 'sexual abuse' \\u2014 i.e., a statement from an expert that, in the expert's opinion, the child was sexually abused \\u2014 is admissible in the absence of any physical evidence of abuse\\\" 347 Or at 142 (emphasis added). The state argued that the fecal matter on the floor constituted \\\"physical evidence of abuse\\\" and, therefore, that the nurse practitioner's diagnosis fell outside of Southard's holding.\\nIn the subsequent colloquy, the nurse confirmed that she had reached a diagnosis of \\\"sexual abuse,\\\" based on A's medical history \\u2014 as reflected in the statements of A and his mother \\u2014 and on the fecal matter found on A's mother's bedroom floor. Ultimately, the trial court allowed the diagnosis, after examining its basis:\\n\\\"[Court:] So your opinion is based upon, one, the child's statements, and, two, the fact that the child pooped on the floor.\\n\\\"[Nurse:] Yes.\\n\\\"[Court:] I'll allow it. I think the poop on the floor goes beyond [Southard]\\nThe nurse then testified that she had diagnosed A with \\\"sexual abuse\\\" after her examination of him.\\nThe jury ultimately convicted defendant of one count of first-degree sodomy, for the sexual assault of A, and one count of first-degree sexual abuse, for the abuse of another child. The jury found defendant not guilty of first-degree sexual abuse of A, which the state had presented as an alternative theory to the count of sodomy. Defendant successfully moved for a judgment of acquittal on his remaining two charges.\\nOn appeal, defendant contends that, under Southard, the nurse practitioner's diagnosis of \\\"sexual abuse\\\" was inadmissible. He does so in two ways. First, he contends that Southard, properly read, precludes the admission of any diagnosis of \\\"sexual abuse,\\\" whether or not that diagnosis is supported by physical evidence. Alternatively, he contends that, even if a diagnosis is admissible when supported by \\\"physical evidence,\\\" that \\\"physical evidence,\\\" as the Oregon Supreme Court contemplated in Southard, refers only to physical evidence of an injury found on the body of the alleged victim. We disagree and, for the reasons that follow, affirm.\\nBefore addressing defendant's arguments, an explanation of the Supreme Court's analytical framework in Southard is in order. In Southard, the Supreme Court ultimately held that a physician's diagnosis that a child had been sexually abused was inadmissible when there was no physical evidence of abuse. Id. at 142. In reaching that holding, the Supreme Court grounded its analysis in familiar evidentiary terms: to be admissible, a diagnosis of sexual abuse \\u2014 or any scientific evidence \\u2014 must satisfy three criteria. Id. at 133. First, the diagnosis must be relevant. Id.; OEC 401. Second, the diagnosis must possess sufficient indicia of scientific validity, and it must be helpful to the jury. Southard, 347 Or at 133; OEC 702. And, third, the prejudicial effect of the diagnosis must not outweigh its probative value. Southard, 347 Or at 133; OEC 403. In applying that framework, the Supreme Court concluded that the diagnosis in Southard was relevant and possessed sufficient indicia of scientific validity. 347 Or at 138-39. Nevertheless, the Supreme Court held that the diagnosis was unduly prejudicial under OEC 403 and, therefore, inadmissible. Southard, 347 Or at 140-41.\\nThe court expressed its ultimate holding in three\\u2014 now oft-quoted \\u2014 sentences:\\n\\\"Our holding today is narrow. The only question on review is whether a diagnosis of'sexual abuse' \\u2014 i.e., a statement from an expert that, in the expert's opinion, the child was sexually abused \\u2014 is admissible in the absence of any physical evidence of abuse. We hold that where, as here, that diagnosis does not tell the jury anything that it could not have determined on its own, the diagnosis is not admissible under OEC 403.\\\"\\nId. at 142.\\nWith that in mind, we turn to defendant's primary argument on appeal, viz., that Southard, properly understood, precludes the admission into evidence of any diagnosis of \\\"sexual abuse,\\\" whether or not that diagnosis is supported by physical evidence. Relying on the third sentence of the Supreme Court's holding, defendant argues that \\\"the holding of Southard is that a diagnosis of 'sexual abuse' does not add anything to aid the jury's deliberations, other than to allow one witness to bolster the credibility of another witness.\\\" We disagree.\\nWe first note that defendant's argument is a dramatic departure from both the Supreme Court's and this court's understanding of Southard's rule, as demonstrated in subsequent articulations of the court's holding. That is to say, both courts have consistently recognized that Southard proscribes only the admission of diagnoses of \\\"sexual abuse\\\" that are not supported by physical evidence. For example, in State v. Lupoli, 348 Or 346, 357, 234 P3d 117 (2010), the Supreme Court characterized Southard's holding as follows:\\n\\\"[A] statement from an expert that, in the expert's opinion, a child had been sexually abused was inadmissible in the absence of physical evidence of abuse, because it does not tell the jury anything that the jury could not have determined on its own, and, therefore, the probative value of any such testimony is outweighed by the danger of unfair prejudicial effect under OEC 403.\\\"\\n(Emphasis added.) We also have repeatedly characterized Southard in the same manner. See, e.g., Vidal, 245 Or App at 515 (\\\"Southard itself announced a rule that concerned an expert medical diagnosis of sexual abuse 'in the absence of any physical evidence of abuse' and it narrowly limited its holding to those circumstances.\\\" (Quoting Southard, 347 Or at 142.) (Emphasis added.)); State v. Lovern, 234 Or App 502, 508-09,228 P3d 688 (2010) (same). In doing so, we have nonetheless assumed that Southard left open the question whether OEC 403 would require exclusion of a diagnosis of \\\"sexual abuse\\\" that is supported by physical evidence in some circumstances. Vidal, 245 Or App at 517.\\nWe reaffirm that understanding today, and, to illustrate why, we turn to the court's analysis in Southard, which, as relevant here, involved a standard application of the well-settled balancing test found in OEC 403. OEC 403 provides:\\n\\\"Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence.\\\"\\nSee, e.g., State v. Brown, 279 Or 404, 438-42, 687 P2d 751 (1984) (applying test).\\nApplying that test in Southard, the court began by determining the probative value of the physician's diagnosis of \\\"sexual abuse.\\\" In doing so, the court first noted that the diagnosis did not tell the jury anything that it was not equally capable of determining on its own. That observation, in turn, sprang from two premises. First, the particular diagnosis of \\\"sexual abuse\\\" at issue in Southard did not present a \\\"complex factual determination that a lay person cannot make as well as an expert.\\\" Southard, 347 Or at 140. Instead, the physician's diagnosis rested entirely upon the credibility of the child's reports of abuse. Second, in making her diagnosis, the physician considered \\\"the same criteria that we expect juries to use every day in courts across [the] state to decide whether witnesses are credible.\\\" Id. From that foundation, the court went on to reason that, \\\"[b]ecause the doctor's diagnosis * did not tell the jury anything that it was not equally capable of determining, the marginal value of the diagnosis was slight.\\\" Id.\\nAgainst that slight probative value weighed a substantial risk of prejudice. The diagnosis came from a credentialed expert and created the risk that the jury would be \\\"'overly impressed or prejudiced by a perhaps misplaced aura of reliability or validity of the evidence[.]'\\\" Id. at 140-41 (quoting Brown, 297 Or at 439 (alteration in Southard)). Moreover, because the diagnosis was based on the physician's credibility determination of the child's reports of abuse, the admission of the diagnosis \\\"posed the risk that the jury w[ould] not make its own credibility determination\\\" but would, instead, defer to the expert's implicit conclusion that the child was credible. Id. at 141. Thus, the court concluded that the risk of prejudice substantially outweighed the slight probative value of the diagnosis. Id. The court then summarized its holding: \\\"[W]here, as here, that diagnosis does not tell the jury anything that it could not have determined on its own, the diagnosis is not admissible under OEC 403.\\\" Id. at 142.\\nDefendant's reading of Southard, in contrast, emphasizes a distinction between an actual diagnosis of \\\"sexual abuse,\\\" and what the court termed \\\"subsidiary principles that inform that diagnosis.\\\" Id. In highlighting that distinction, defendant relies heavily on a footnote that immediately followed the court's observation that the diagnosis in Southard rested on the same criteria for determining credibility that jurors use daily across the state:\\n\\\"To the extent that the doctor employed criteria that went beyond a juror's common experience, defendant did not object to her explaining those criteria to the jury. Specifically, defendant did not object to the doctor's testimony regarding how a child's age and stage of development affects his or her ability to recount experiences, the kinds of words that a child the boy's age typically would use to describe a sexual experience, or the fact that the boy's delayed reporting did not necessarily mean that he had not been abused. The jury was thus free to employ those criteria in making its own assessment of the boy's credibility. The question that this case presents is whether the doctor's ultimate conclusion of sexual abuse, standing alone, added anything helpful to the jury's deliberations.\\\"\\nId. at 140 n 12 (emphasis added). As we understand defendant's position, relying on the last two sentences of the footnote, he argues that Southard contemplates a system in which a physician or similar medical expert may testify about the basis of the expert's diagnosis of sexual abuse, with which a lay person ordinarily would not be familiar. But he argues that, once those criteria are admitted, the diagnosis of sexual abuse itself adds nothing to the jury's deliberations and, therefore, is categorically inadmissible.\\nWe decline to extend Southard's holding beyond cases in which a diagnosis of \\\"sexual abuse\\\" was made in the absence of any physical evidence of abuse. We also reiterate the narrow nature of that holding. Southard held only that a diagnosis of \\\"sexual abuse\\\" is inadmissible under OEC 403 when it is not supported by any physical evidence of abuse. In doing so, the court did not hold that the mere existence of physical evidence would cause a medical diagnosis of \\\"sexual abuse\\\" to become per se admissible. See Vidal, 245 Or App at 517 (noting that that question remains unanswered). The admissibility of a diagnosis in such circumstances continues to be subject to the balancing test of OEC 403.\\nWith that in mind, we turn to defendant's second argument on appeal, that \\\"physical evidence,\\\" as contemplated in Southard, refers only to physical evidence of abuse found on the complainant's body. To the extent that defendant is arguing that the physical evidence requirement in Southard requires more than any \\\"physical evidence\\\" that may arguably corroborate a child's allegations of abuse, we agree. But defendant provides no support for the distinction that he posits between physical evidence located on the body of a child and evidence about the physical effects of abuse on a child's body \\u2014 or, for that matter, any other physical remnants of abuse. We see no reason to adopt such a restrictive interpretation. Reviewing the concerns underlying the court's holding in Southard, and our subsequent case law applying that holding, we hold, instead, that there is sufficient physical evidence of abuse to avoid Southard's proscription \\u2014 that is, there is sufficient physical evidence so that the diagnosis of sexual abuse tells the jury something that it is not equally capable of determining on its own \\u2014 when (1) the significance of that physical evidence is \\\"the sort of complex factual determination that a lay person cannot make as well as an expert,\\\" (2) the physical evidence is corroborative of the type of abuse actually alleged, and (3) the medical expert actually relies on the physical evidence in making a diagnosis of sexual abuse.\\nThe first of those requirements is a logical outgrowth of the court's determination that the probative value of the diagnosis in Southard was slight. As noted, that determination was based on two observations. The first was that the criteria employed by the physician in making her diagnosis were \\\"essentially the same criteria that we expect juries to use every day to decide whether witnesses are credible.\\\" Southard, 347 Or at 140. The second was that the diagnosis did not present a \\\"complex factual determination that a lay person cannot make as well as an expert.\\\" Id. As the foundation for a diagnosis of sexual abuse moves away from a routine credibility determination, however, and begins to incorporate physical evidence and a medical professional's determination of the physiological significance of that evidence \\u2014 as the Liberty House nurse practitioner's diagnosis did here \\u2014 that diagnosis ceases to be one that a lay person can make as well as an expert, and it ceases to be based upon the same criteria that we expect juries to employ in everyday credibility determinations. Accordingly, the probative value of the diagnosis increases.\\nHowever, the mere existence of some medically significant physical evidence, however, does not, on its own, remove a diagnosis from the universe of determinations that a jury may make as well as an expert. The medical expert must also apply his or her expertise in relying on that evidence. Two of our cases are illustrative. In both Lovern and Vidal, we addressed medical diagnoses of sexual abuse where a medical professional found abnormalities in the hymens of children who had allegedly suffered sexual abuse. In both cases, the children were diagnosed with sexual abuse, and those diagnoses were admitted at trial. On appeal, both defendants argued that, under Southard, the diagnoses were admitted in error. We reviewed the claims for plain error, reversing in Lovern and affirming in Vidal.\\nIn Lovern, a child reported that the defendant had touched her vagina, breasts, and buttocks and that he had penetrated her bottom with his penis. 234 Or App at 504. At trial, a physician testified that, during an examination, she had found \\\"a couple of notches in part of [the child's] hymen.\\\" Id. at 505. She noted that that level of notching was \\\"unusual\\\" but \\\"not so specific that it indicates that there was clearly an injury there before.\\\" Id. In reviewing the defendant's claim for plain error, we concluded that there was \\\"no material legal distinction between the admissibility of the expert's diagnosis of sexual abuse in Southard and the admission of the diagnosis in [Lovern].\\\" Id. at 510-11. We relied on the fact that, by the physician's own testimony, \\\"the physical evidence neither confirmed nor refuted a diagnosis of sexual abuse.\\\" Id. at 511. Further, we noted that, \\\"given the nature of the charged conduct, which did not involve penetration of the complainant's vagina, the results of the physical examination did not corroborate the alleged abuse.\\\" Id. at 511 n 6. Because the physician had not actually relied on the physical evidence \\u2014 and because the physical evidence did not corroborate the alleged abuse \\u2014 we held that her diagnosis was based solely on the complainant's statements and history and, thus, reduced to a mere credibility determination. Id. at 512. Accordingly, we held that, under Southard, the admission of the physician's testimony constituted plain error. Id.\\nSimilarly, in Vidal a child reported multiple instances of sexual abuse by the defendant, including rape. A nurse testified at trial that, during an examination, she observed \\\"decreased hymenal tissue\\\" and '\\\"angularities' at several locations on the posterior of the hymen.\\\" 245 Or App at 513. She testified that those irregularities could be indicative of \\\"a penetrative injury caused by abuse or assault!,]\\\" but, when asked whether they could also \\\"be a variation of normal\\\" or \\\"something besides abuse,\\\" she answered, \\\"Yes.\\\" Id. at 514. On plain error review, however, we distinguished Lovern and reached the opposite conclusion about the admissibility of the nurse's diagnosis of sexual abuse. We noted that, in contrast to Lovern, where the physician \\\"certainly underplayed \\u2014 if not rejected outright \\u2014 any significance of the appearance of the child's hymen in making [her] diagnosis of sexual abuse [,]\\\" the nurse in Vidal had testified that the irregularities on the child's hymen were significant to her diagnosis. Vidal, 245 Or App at 517. Further, the nurse testified that the physical evidence was corroborative of a penetrative injury to the child's vagina, as had been reported. Id. That reliance, along with the consistency between the evidence and the reported abuse, brought the diagnosis outside of Southard's holding \\u2014 even though the evidence was not independently determinative. Id.\\nThus, although the nature of the physical evidence in both cases was largely the same, we distinguished Vidal from Lovern based on the corroborative value of \\u2014 and the medical expert's actual reliance on \\u2014 the physical evidence of abuse. Those differences transformed the medical expert's diagnosis from a mere credibility determination about the child's statements into something more.\\nApplying those factors to this case, we conclude that the fecal matter that A's mother found on her bedroom floor was precisely the type of physical evidence of abuse identified in Southard. The nurse practitioner testified at length about the medical significance of the fecal matter, which she described as \\\"interesting and somewhat concerning.\\\" She explained that, because A had no history of defecating in inappropriate places, the fecal matter was \\\"concerning that something had happened to [A's] anal area.\\\" She went on to explain the physiology of the rectal muscles, how the stimulation of those muscles can elicit a bowel movement, and, thus, that the defecation was consistent with the alleged abuse. On cross-examination, she clarified that her understanding of the physiology was based on her medical knowledge.\\nThat physiological determination is the type of complex factual determination that a lay person cannot make as well as an expert. It required the application of specific, specialized medical knowledge to diagnostic facts. As such, it was not based on criteria that we expect juries to use every day, but on the nurse practitioner's understanding of the physiology of the rectum. Further, the fecal matter corroborated A's specific allegations of abuse. Finally, before admitting the nurse practitioner's diagnosis, the court reaffirmed that the diagnosis was based on \\\"one, the child's statements, and, two, the fact that the child pooped on the floor.\\\" Accordingly, the nurse practitioner actually relied on the physical evidence- \\u2014 not merely on A's statements.\\nUnder those circumstances, we conclude that the nurse practitioner's diagnosis of. sexual abuse was not inadmissible under Southard. Accordingly, we hold that the trial court did not err in admitting the diagnosis.\\nAffirmed.\\nLiberty House is a child abuse assessment center. It conducts medical examinations and video-taped interviews of children suspected of suffering abuse.\\nWe have now had several occasions to analyze the Supreme Court's opinion in Southard, and we see no need to reproduce that discussion here. For a more thorough discussion of the background of Southard and the court's reasoning within each analytical step, see State v. Lovern, 234 Or App 502, 228 P3d 688 (2010).\\nWe note that defendant's reading of Southard assumes that a physician should be able to testify at length about the \\\"subsidiary principles that inform\\\" a diagnosis of sexual abuse. For example, defendant contends that \\\"it was permissible\\\" for the Liberty House nurse practitioner to testify about the elasticity of the anus and that penetration of the anus tends to cause defecation, but that testimony (and the physical evidence on which it was based) did not mean that the diagnosis of sexual abuse was admissible. However, in Southard, the court expressly declined to address whether those subsidiary principles were themselves admissible. 347 Or at 142. We think it unlikely that the proper reading of Southard is premised on a holding that the court specifically declined to reach.\\nDefendant did not argue, either at trial or on appeal, that the diagnosis was nevertheless unduly prejudicial under OEC 403, and we do not address that issue here.\"}"

or/4036707.json

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+"{\"id\": \"4036707\", \"name\": \"STATE OF OREGON, Plaintiff-Respondent, v. DONTE MUHAMMAD, Defendant-Appellant\", \"name_abbreviation\": \"State v. Muhammad\", \"decision_date\": \"2014-09-10\", \"docket_number\": \"CR1201333; A154464\", \"first_page\": \"412\", \"last_page\": \"415\", \"citations\": \"265 Or. App. 412\", \"volume\": \"265\", \"reporter\": \"Oregon Reports, Court of Appeals\", \"court\": \"Oregon Court of Appeals\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T18:52:58.479773+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Duncan, Presiding Judge, and Wollheim, Judge, and Lagesen, Judge.\", \"parties\": \"STATE OF OREGON, Plaintiff-Respondent, v. DONTE MUHAMMAD, Defendant-Appellant.\", \"head_matter\": \"Submitted July 7,\\nremanded for resentencing; otherwise affirmed September 10, 2014\\nSTATE OF OREGON, Plaintiff-Respondent, v. DONTE MUHAMMAD, Defendant-Appellant.\\nClackamas County Circuit Court\\nCR1201333; A154464\\n335 P3d 1281\\nPeter Gartlan, Chief Defender, and Andrew D. Robinson, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.\\nEllen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Greg Rios, Assistant Attorney General, filed the brief for respondent.\\nBefore Duncan, Presiding Judge, and Wollheim, Judge, and Lagesen, Judge.\\nDUNCAN, P. J.\", \"word_count\": \"911\", \"char_count\": \"5660\", \"text\": \"DUNCAN, P. J.\\nDefendant and his wife pleaded guilty to various crimes involving health care fraud, and the trial court ordered them to pay restitution, jointly and severally, in the amount of $229,886.63. See ORS 137.106 (authorizing an award of restitution when \\\"a person is convicted of a crime * that has resulted in economic damages\\\"). On appeal, defendant argues that the restitution amount erroneously included damages resulting from crimes for which only his wife had been charged and convicted. The state concedes the error and, for the reasons that follow, we accept the concession and remand for resentencing.\\nThe relevant facts are undisputed. Defendant and his wife were separately indicted on charges related to health care fraud. The charges against defendant were based on activities that occurred between November 1, 2009 and July 15, 2012, whereas the charges against his wife covered a more expansive period from 2007 to 2012. After defendant and his wife pleaded guilty to a number of offenses, the state sought restitution from both of them. At a hearing on the question of restitution, the state presented evidence that defendant or his wife had engaged in criminal activities between August 2007 and July 2012 that caused economic damages in the amount of $229,886.63.\\nDefendant, in response, argued that he should not be required to pay restitution for the entire five-year period because, among other reasons, the state had not charged him with criminal activities that occurred before November 2009. The state, in reply, argued that defendant had lived with his wife \\\"the entire time and benefited from this lifestyle. He ate with her, he went shopping with her, he lived in the same home with her, he bought electronics with her for his kids. They benefited from this amount as a married couple.\\\" The trial court agreed with the state's theory and imposed the full amount of restitution ($229,886.63) jointly and severally on defendant and his wife:\\n\\\"I am going to order the amount that is requested by the State in the full amount. It is going to be joint and several as to both [defendant and his wife]. As I have observed the evidence, as I read the evidence, culpability is not truly separable. It may be that [defendant's wife] bears the greater burden of responsibility and shame out of this, but the liability will be joint and several.\\\"\\nOn appeal, defendant argues that the trial court erred by requiring him to pay restitution for economic damages that were incurred before the crimes for which he was charged and to which he pleaded guilty. Defendant argues, and the state concedes, that, under our case law, it is error\\u2014 plain error, in fact \\u2014 for a trial court to impose restitution based on activities that occurred outside the period of time covered by the defendant's plea agreement. E.g., State v. Dorsey, 259 Or App 441, 314 P3d 331 (2013) (relying on, among other cases, State v. Howett, 184 Or App 352, 56 P3d 459 (2002)).\\nIn Dorsey, the defendant pleaded guilty to stealing from her employer over a 16-day period, but the trial court imposed restitution for additional amounts stolen during another time period. On appeal, the defendant argued that, although she had not raised the issue below, the trial court had plainly erred in awarding restitution based on conduct that was not covered by her plea. We agreed, explaining that \\\"[w]e have consistently interpreted the restitution statutes to mean that a [defendant cannot be required to pay restitution for pecuniary damages arising out of criminal activity for which he was not convicted or which he did not admit having committed\\\" 259 Or App at 445-46 (internal quotation marks and citation omitted; emphasis added).\\nHere, as in Dorsey, the trial court's restitution award included economic damages arising out of criminal activities for which defendant was not convicted and did not admit having committed. Defendant was charged with and pleaded guilty to criminal activities that began in November 2009, but the restitution award included economic damages that were incurred as early as 2007. The fact that defendant may have benefitted from his wife's earlier criminal activities, as the trial court found, does not alter the reach of the restitution statutes. It was error for the trial court to impose restitution jointly and severally on defendant for criminal activities that occurred before the dates covered by his plea agreement. We therefore accept the state's concession and remand the case for resentencing.\\nRemanded for resentencing; otherwise affirmed.\\nThis is not a case in which defendant stipulated to the imposition of restitution for conduct for which he was not convicted and did not admit to committing. See State v. Carson, 238 Or App 188, 192, 243 P3d 73 (2010) (explaining that, \\\"[e]ven though the statutory framework generally limits restitution awards to damages resulting from crimes of conviction or other criminal activities to which a defendant has admitted, the parties may alter that framework by agreement or waiver\\\").\"}"

or/4198400.json

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+"{\"id\": \"4198400\", \"name\": \"STATE OF OREGON, Plaintiff-Appellant, v. JUDE ERICH SILBERNAGEL, Defendant-Respondent\", \"name_abbreviation\": \"State v. Silbernagel\", \"decision_date\": \"2009-07-15\", \"docket_number\": \"07C41549; A138359\", \"first_page\": \"688\", \"last_page\": \"692\", \"citations\": \"229 Or. App. 688\", \"volume\": \"229\", \"reporter\": \"Oregon Reports, Court of Appeals\", \"court\": \"Oregon Court of Appeals\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T21:49:53.073206+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Haselton, Presiding Judge, and Armstrong, Judge, and Rosenblum, Judge.\", \"parties\": \"STATE OF OREGON, Plaintiff-Appellant, v. JUDE ERICH SILBERNAGEL, Defendant-Respondent.\", \"head_matter\": \"Argued and submitted May 28,\\nreversed and remanded July 15,2009\\nSTATE OF OREGON, Plaintiff-Appellant, v. JUDE ERICH SILBERNAGEL, Defendant-Respondent.\\nMarion County Circuit Court\\n07C41549; A138359\\n215 P3d 876\\nJanet A. Klapstein, Senior Assistant Attorney General, argued the cause for appellant. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.\\nErin C. Walters argued the cause for respondent. With her on the brief was Elton T. Lafky.\\nBefore Haselton, Presiding Judge, and Armstrong, Judge, and Rosenblum, Judge.\\nROSENBLUM, J.\", \"word_count\": \"1044\", \"char_count\": \"6305\", \"text\": \"ROSENBLUM, J.\\nThe state appeals a pretrial order granting defendant's motion to suppress evidence of breath test results in this prosecution for driving under the influence of intoxicants (DUII). Defendant initially refused to take the breath test but then agreed to take it after the arresting officer told him that, if he did not, the officer could apply for a search warrant for a blood sample and that the sample could be obtained by force if defendant did not cooperate with the blood draw. Under ORS 813.100(2) and ORS 813.140, the police may obtain a blood test for purposes of determining a driver's blood-alcohol level only if the driver is unconscious or expressly consents to the test, which was not the case here. The trial court granted defendant's motion to suppress on the ground that his breath test was obtained in violation of those statutes. We reverse and remand.\\nOn appeal, the state argues that it is lawful for a police officer to tell a DUII suspect that the officer may apply for a warrant to seize a blood sample and, accordingly, that such a statement does not violate the implied consent laws. The state also argues that, in all events, under ORS 136.432, evidence obtained through a statutory violation is not subject to suppression.\\nWe need not consider whether the arresting officer in this case violated the implied consent laws, because, even assuming that he did, we agree with the state that ORS 136.432 precludes suppression of the evidence. That statute prevents a court from excluding relevant and otherwise admissible evidence on the grounds that it was obtained in violation of any statutory provision unless exclusion of the evidence is required by the state or federal constitution, a rule of evidence governing privileges or the admission of hearsay, or the rights of the press. \\\"In other words, unless the legislature has created an express exclusionary remedy for a statutory violation, a court may not exclude relevant and otherwise admissible evidence in a criminal proceeding simply because it was obtained in violation of a statute.\\\" State v. Bloom, 216 Or App 245, 249, 172 P3d 663 (2007), rev den, 344 Or 280 (2008). No statute of which we are aware provides an exclusionary remedy for a violation of ORS 813.100(2) and ORS 813.140. Cf. Bloom, 216 Or App at 252 (finding no statutory provision that requires suppression of evidence obtained in violation of ORS 813.100 and ORS 813.130).\\nDefendant asserts that there is a constitutional basis for affirming the trial court's order. He argues that a breath test constitutes a search and that the state and federal constitutions require a warrant for a search unless one of the well-established exceptions to the warrant requirement applies, one of which is consent. In defendant's view, because the police did not have a warrant, for evidence of the breath test to be admissible, the police were required to obtain his consent. He contends that his consent was invalid because it was the product of a threat to obtain a warrant, which the police did not have the authority to do.\\nWe will affirm a trial court on alternative grounds only if, among other things, the facts in the record are sufficient to support the alternative basis for affirmance. Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or 634, 659-60, 20 P3d 180 (2001). \\\"In analyzing whether consent to a search is voluntary, the relevant inquiry is whether, under the totality of the circumstances, the consent was the product of the defendant's free will or, conversely, was the result of express or implied coercion.\\\" State ex rel Juv. Dept. v. Stephens, 175 Or App 220, 225, 27 P3d 170 (2001). In this case, because the trial court was not presented with the constitutional argument that defendant advances on appeal, it did not make all of the findings necessary for us to review the totality of the circumstances. For example, the totality of the circumstances include the defendant's state of mind, so the trial court, as factfinder, must make inferences about the defendant's state of mind when he or she gave consent, State v. Johnson, 120 Or App 151, 158-59, 851 P2d 1160, rev den, 318 Or 26 (1993), a factual issue that the court in this case did not address. Because the record is not sufficiently developed to support defendant's proffered constitutional ground for affirmance, we do not consider it.\\nReversed and remanded.\\nAt oral argument, we directed the parties to submit memoranda discussing the effect on this case, if any, of this court's recent decision in Hays v. DMV, 228 Or App 689, 209 P3d 405 (2009). In its memorandum, the state argues, among other things, that Hays does not negate its contention that ORS 136.432 precludes suppression in this case. We agree. Hays was an administrative case concerning the suspension of a driver's license for DUII, rather than a criminal prosecution, so ORS 136.432 did not apply. Because this case is a criminal prosecution, Hays is inapposite here.\\nDefendant acknowledges that, under the implied consent statutes, a driver is deemed to have consented to a breath test. He contends, however, that a driver may withdraw the implied consent after the police inform him or her of the rights and consequences associated with a breath test refusal. He contends that, with his initial refusal to take the test, he withdrew his implied consent and, thus, that his later decision to take the breath test constituted the operative \\\"consent.\\\" Because we conclude below that the factual record is not sufficiently developed to determine whether defendant voluntarily agreed to take the breath test, we do not address the validity of his assertion that a driver may withdraw the statutorily implied consent.\"}"