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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).\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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\"}"
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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.\"}"
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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.\"}"
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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).\"}"
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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.\"}"
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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.\"}"
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+"{\"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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\\\"\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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+"{\"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.\\\"\"}"
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+"{\"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.\"}"
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diff --git a/or/2202496.json b/or/2202496.json
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+"{\"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.\"}"
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+"{\"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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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diff --git a/or/2263231.json b/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.\"}"
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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.]\"}"
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diff --git a/or/2277899.json b/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.\"}"
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diff --git a/or/2286160.json b/or/2286160.json
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--- /dev/null
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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.)\"}"
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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.\"}"
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+"{\"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.\"}"
\ No newline at end of file
diff --git a/or/2352320.json b/or/2352320.json
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+"{\"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.\"}"
\ No newline at end of file
diff --git a/or/2356382.json b/or/2356382.json
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+"{\"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).\"}"
\ No newline at end of file
diff --git a/or/2367775.json b/or/2367775.json
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+"{\"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.\"}"
\ No newline at end of file
diff --git a/or/2427998.json b/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.\"}"
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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.\"}"
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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.\"}"
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+"{\"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.\"}"
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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\\\").\"}"
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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.\"}"
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+"{\"id\": \"4214067\", \"name\": \"Dea Isis FERGUSON, a minor, by and through her mother and Guardian ad litem, Teri Ferguson; Teri Ferguson; and Shaun Ferguson, Plaintiffs-Appellants, v. PEACEHEALTH, a not-for-profit corporation incorporated in the State of Washington, Defendant-Respondent, and Suzanne SCARBERRY, Lori Ellis, Kevin Johnson, and John Does 1 and 2, Defendants\", \"name_abbreviation\": \"Ferguson v. PeaceHealth\", \"decision_date\": \"2011-08-31\", \"docket_number\": \"160713736; A142083\", \"first_page\": \"249\", \"last_page\": \"254\", \"citations\": \"245 Or. App. 249\", \"volume\": \"245\", \"reporter\": \"Oregon Reports, Court of Appeals\", \"court\": \"Oregon Court of Appeals\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T19:02:06.367414+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Ortega, Presiding Judge, and Sercombe, Judge, and Landau, Judge pro tempore.\", \"parties\": \"Dea Isis FERGUSON, a minor, by and through her mother and Guardian ad litem, Teri Ferguson; Teri Ferguson; and Shaun Ferguson, Plaintiffs-Appellants, v. PEACEHEALTH, a not-for-profit corporation incorporated in the State of Washington, Defendant-Respondent, and Suzanne SCARBERRY, Lori Ellis, Kevin Johnson, and John Does 1 and 2, Defendants.\", \"head_matter\": \"Argued and submitted December 22, 2010,\\naffirmed August 31, 2011,\\npetition for review denied February 2, 2012 (351 Or 545)\\nDea Isis FERGUSON, a minor, by and through her mother and Guardian ad litem, Teri Ferguson; Teri Ferguson; and Shaun Ferguson, Plaintiffs-Appellants, v. PEACEHEALTH, a not-for-profit corporation incorporated in the State of Washington, Defendant-Respondent, and Suzanne SCARBERRY, Lori Ellis, Kevin Johnson, and John Does 1 and 2, Defendants.\\nLane County Circuit Court\\n160713736; A142083\\n263 P3d 1037\\nMarianne Dugan argued the cause and filed the briefs for appellants.\\nBradley F. Piscadlo argued the cause for respondent. With him on the brief were Jeffrey R. Street and Hodgkinson Street, LLC.\\nBefore Ortega, Presiding Judge, and Sercombe, Judge, and Landau, Judge pro tempore.\\nSERCOMBE, J.\", \"word_count\": \"1573\", \"char_count\": \"9548\", \"text\": \"SERCOMBE, J.\\nPlaintiffs are Teri Ferguson (mother), Shaun Ferguson (father), and Dea Ferguson (daughter). They appeal an adverse judgment entered on their claims that defendant PeaceHealth was negligent in various respects relating to the issuance of prescription medication that caused injuries to Dea. Plaintiffs assign error to, among other things, the trial court's summary imposition of a contempt sanction against Teri for violating a \\\"gag order\\\" by posting certain trial-related comments to a website. Plaintiffs argue that (1) the comments did not fall within the court's order prohibiting contact with the \\\"press,\\\" (2) Teri did not act willfully, as is required for a finding of contempt, and (3) in any event, the trial court did not follow the statutory procedures for imposing sanctions for contempt of court. See ORS 33.015 - 33.155 (establishing procedures governing the exercise of a court's contempt powers). We conclude that, because the trial court's order imposing a contempt sanction was not reduced to a judgment, it is not properly before us on appeal. Accordingly, we do not address the merits of the contempt sanction but otherwise affirm.\\nPlaintiffs brought suit against PeaceHealth after Dea experienced adverse medical effects from the use of a medication prescribed to alleviate diaper rash. Plaintiffs alleged claims for negligence and spoliation of medical records. The trial court granted partial summary judgment on the spoliation claim, but the negligence claims proceeded to trial. At the beginning of trial, in response to press coverage of the case, defense counsel raised concerns that \\\"it would be inappropriate for the parties to be contacting the press during the trial because of the risk of tainting the jury with something that's not being said here in the courtroom.\\\" Consequently, the trial court orally ordered the parties to abstain from communicating with the press: \\\"[Y]ou are not to have any contact or initiate any contact during the course of this trial in order to ensure that the jury is able to make a decision based upon what occurs in this courtroom as opposed to what occurs outside of the courtroom.\\\"\\nSubsequently, during trial, defense counsel brought to the court's attention a possible violation of the order: Teri had, apparently, posted a comment to a blog in response to a third party's comment about the case. According to defendant, Teri's comment was:\\n\\\"I am the mother of the child this claim is about and as much as I would love to just spill all the facts out right here and now, I have been asked by the judge to not discuss it with anyone and so for now, that will be the case. However, the day this trial is over and we have either won or lost, you can count on the fact that I will show [the third party commenter] what an ass he has made out of himself for making these statements when he clearly doesn't know the facts but for now my lips are sealed.\\\"\\nDefendant moved the court to take action in one of three ways: dismiss the case with prejudice, instruct the jury that plaintiffs had violated the court's order, or impose \\\"an appropriate monetary sanction against Ms. Teri Ferguson herself personally.\\\"\\nPlaintiffs' counsel argued that her client's comment did not constitute contact with \\\"the media\\\" and that, in any event, she did not violate the court's order, \\\"at least not knowingly.\\\" The court nonetheless determined that Teri was \\\"in contempt of court for violating this clear and direct order not to discuss the case.\\\" The court declined to dismiss the case or instruct the jury on the matter, but summarily imposed a $1,000 fine as a sanction for \\\"the contempt of court that was done in the court's presence, basically, since the court entered this order[.] At this point, the court expects it to be paid before this case goes to the jury.\\\" The court then took a recess to allow Teri to pay the fine to the court clerk before proceeding, which she did.\\nUltimately, the jury returned a verdict in favor of defendant and the court entered a general judgment on the verdict. The general judgment contained no reference to the contempt sanction; nor was a separate judgment of contempt entered. Plaintiffs, in an omnibus motion, sought a judgment notwithstanding the verdict or a new trial. Among other things, they challenged the imposition of the contempt sanction. In addition to elaborating on their arguments from trial, plaintiffs argued that the trial court erred in imposing a punitive sanction without providing the procedural safeguards required by ORS 33.065. The motion was deemed denied by operation of law, see ORCP 63 D(l) (motion deemed denied if not ruled upon within 55 days), and plaintiffs appealed.\\nOn appeal, plaintiffs renew their arguments from below. However, we do not reach plaintiffs' contentions about the contempt sanction in this case. An appeal from a sanction for contempt must be predicated upon a judgment of contempt. ORS 33.125(1) provides that the \\\"imposition of a sanction for contempt shall be by a judgment.\\\" (Emphasis added.) See also ORS 33.125(4) (contemplating separate appeal from a contempt judgment). The contempt sanction was not included in the judgment under review. Consequently, the legality of that sanction is not before us.\\nContempt sanctions are either remedial or punitive in character. See ORS 33.015(3) (defining \\\"punitive sanction\\\" as \\\"a sanction imposed to punish a past contempt of court\\\"); ORS 33.015(4) (defining \\\"remedial sanction\\\" as \\\"a sanction imposed to terminate a continuing contempt of court or to compensate for injury, damage or costs resulting from a past or continuing contempt of court\\\"). See also ORS 33.045(3) (defining a fine imposed for contempt as \\\"[pjunitive if it is for a past contempt\\\" and as \\\"remedial\\\" if the fine \\\"is for continuing contempt and the fine accumulates until the defendant complies with the court's judgment or order or if the fine may be partially or entirely forgiven when the defendant complies with the court's judgment or order\\\"). In the case of a remedial sanction for contempt, the judgment of contempt may be made part of the judgment in the proceeding to which the contempt is related. See ORS 33.125(3) (so providing). That is because a proceeding for a remedial sanction may be initiated by a motion filed in the related proceeding. See ORS 33.055 (procedure for imposition of remedial sanction).\\nIn the case of a punitive sanction for contempt, on the other hand, the judgment of contempt is separate from the judgment in any related proceeding. That is because a proceeding for a punitive sanction is usually initiated by a separate accusatory instrument, filed by a neutral third party such as the city or district attorney. See ORS 33.065 (procedure for imposition of punitive sanctions).\\nHere, a punitive sanction was imposed against Teri for contempt of court. The trial court's order imposing that sanction was not reduced to a judgment. In the absence of a judgment, the issue is not properly before us. Cf. State v. Burleson, 342 Or 697, 702, 160 P3d 624 (2007) (noting that contempt sanction is not appealable until judgment is entered). Consequently, we express no opinion on the merits of plaintiffs' challenge to the contempt sanction. That challenge must await the entry of a judgment of contempt and any appeal therefrom.\\nAffirmed.\\nFor ease of reference, we subsequently refer to individual plaintiffs by their first names.\\nWe reject plaintiffs' remaining assignments of error without discussion.\\nWe note at the outset that, although a court's power to impose a sanction for contempt \\\"is an inherent judicial power,\\\" ORS 33.025, the legislature has imposed reasonable limitations on a court's exercise of that authority via ORS 33.015 to 33.155. See State v. Walton, 215 Or App 628, 631, 170 P3d 1122 (2007), rev den, 344 Or 671 (2008) (noting that \\\"the legislature can impose limitations on the court's contempt power\\\" (citing State v. Moen, 86 Or App 87, 91, 738 P2d 228 (1987))).\\nUnder ORS 33.096, a court may \\\"summarily impose a sanction upon a person who commits a contempt of court in the immediate view and presence of the court. The provisions of ORS 33.055 and 33.065 do not apply to summary imposition of sanctions under this section.\\\" Thus, the procedures for imposing a punitive sanction under ORS 33.065 do not apply where the sanction is imposed summarily for a contempt committed in the immediate view and presence of the court. Notwithstanding the trial court's statement to the contrary, the contempt in this case was committed outside of the presence of the court. We need not decide whether a summary contempt must be included in the related case judgment or in a separate judgment.\"}"
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+"{\"id\": \"4220668\", \"name\": \"Lisa CATT and Blanca Catt, Plaintiffs-Appellants, v. DEPARTMENT OF HUMAN SERVICES, on behalf of the State of Oregon; Maria Dunn; and Elizabeth Dillner, Defendants-Respondents, and Judith SWANSON; Kathryn Underhill; and Juvenile Rights Project, Inc., Defendants\", \"name_abbreviation\": \"Catt v. Department of Human Services\", \"decision_date\": \"2012-08-01\", \"docket_number\": \"091014151; A146815\", \"first_page\": \"488\", \"last_page\": \"514\", \"citations\": \"251 Or. App. 488\", \"volume\": \"251\", \"reporter\": \"Oregon Reports, Court of Appeals\", \"court\": \"Oregon Court of Appeals\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T20:41:46.564956+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Schuman, Presiding Judge, and Wollheim, Judge, and Nakamoto, Judge.\", \"parties\": \"Lisa CATT and Blanca Catt, Plaintiffs-Appellants, v. DEPARTMENT OF HUMAN SERVICES, on behalf of the State of Oregon; Maria Dunn; and Elizabeth Dillner, Defendants-Respondents, and Judith SWANSON; Kathryn Underhill; and Juvenile Rights Project, Inc., Defendants.\", \"head_matter\": \"Argued and submitted November 7, 2011,\\naffirmed in part, reversed in part, and remanded August 1, 2012\\nLisa CATT and Blanca Catt, Plaintiffs-Appellants, v. DEPARTMENT OF HUMAN SERVICES, on behalf of the State of Oregon; Maria Dunn; and Elizabeth Dillner, Defendants-Respondents, and Judith SWANSON; Kathryn Underhill; and Juvenile Rights Project, Inc., Defendants.\\nMultnomah County Circuit Court\\n091014151; A146815\\n284 P3d 532\\nMark Kramer argued the cause for appellants. With him on the briefs was Kramer & Associates.\\nErin C. Lagesen, Assistant Attorney General, argued the cause for respondents. With her on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.\\nBefore Schuman, Presiding Judge, and Wollheim, Judge, and Nakamoto, Judge.\\nNAKAMOTO, J.\", \"word_count\": \"9289\", \"char_count\": \"57348\", \"text\": \"NAKAMOTO, J.\\nThis civil dispute arises from a failure by the Department of Human Services (DHS) to secure permanent legal residency status and, consequently, United States citizenship for plaintiff Blanca Catt while she was in DHS's legal custody, and from DHS's false representations to Blanca's adoptive mother, plaintiff Lisa Catt, regarding Blanca's citizenship. As relevant to this appeal, plaintiffs brought two claims against DHS and several of its employees under the Oregon Torts Claims Act, one based on preadoption conduct by DHS \\u2014 primarily the failure to process Blanca's permanent residency status properly \\u2014 and the other based on post-adoption conduct \\u2014 false representations regarding Blanca's American citizenship. DHS moved for summary judgment, arguing that (1) plaintiffs failed to timely provide DHS with their tort claims notice; (2) plaintiffs' claims were barred by the statute of limitations; and (3) plaintiffs' preadoption claim was barred by the statute of ultimate repose. DHS prevailed on all grounds. We conclude that there are genuine issues of fact for trial regarding whether plaintiffs timely served their tort claims notice and brought a portion of their post-adoption claim; however, we also conclude that plaintiffs' preadoption claim and parts of their post-adoption claim are barred by the statute of ultimate repose. We therefore affirm in part and reverse in part.\\nI. FACTS\\nBecause the trial court granted DHS's motion for summary judgment, we state the facts most favorably to plaintiffs, the nonmoving parties. Jones v. General Motors Corp., 325 Or 404, 408, 939 P2d 608 (1997). Blanca was born in Mexico in 1990. In 1993, Blanca's birth parents or other relatives brought Blanca into the United States illegally from Mexico. Blanca was then abused by her biological mother, causing DHS to seek and to obtain custody of Blanca. DHS then placed Blanca in the foster care of Lisa and her then husband. On October 23, 1996, an Oregon court terminated the parental rights of Blanca's biological parents, a decision partly based on findings that Blanca had suffered serious abuse in their care.\\nWhile Blanca was in foster care, defendant Dunn was the primary DHS caseworker assigned to Blanca's case. Defendant Dillner was the DHS caseworker responsible for pursuing Blanca's American citizenship. On behalf of Blanca, and while DHS was responsible for her care, Dillner prepared and submitted two forms, an 1-360 Petition for Special Immigrant and an 1-485 Application to Register Permanent Resident or Adjust Status, to the former Immigration and Naturalization Service (INS), currently known as the United States Citizenship and Immigration Services (USCIS). Dillner filed the applications with INS to establish Blanca's legal residency in the United States, a prerequisite for citizenship. Unfortunately, DHS's attempt to file the legal residency applications was unsuccessful because of mistakes by DHS employees.\\nOnce the parental rights of Blanca's biological parents were terminated, Lisa and her then husband sought to adopt Blanca. Lisa requested that DHS complete the citizenship process for Blanca before the adoption was finalized. Though DHS had been unable to secure citizenship for Blanca, it informed Lisa that Blanca could establish citizenship either through adoption or a court order identifying permanent foster care for Blanca as the permanency plan. While Lisa was Blanca's foster parent, DHS advised Lisa that Blanca would automatically obtain citizenship once Blanca was adopted because her adoptive parents, Lisa and her then husband, were United States citizens. At no point did DHS explain to Lisa that any further steps were necessary for Blanca to become a citizen.\\nIn May 1999, Blanca's adoption was finalized. Blanca was then eight years old.\\nIn 2000, DHS represented to Lisa that, because of the passage of the Child Citizenship Act of 2000 (CCA), codified in relevant part at 8 USC sections 1431 and 1433, Blanca would automatically become a citizen through her 1999 adoption. DHS also explained to Lisa that, if Blanca needed proof of her citizenship, then Blanca's new birth certificate, evidence of Lisa's and her then husband's citizenship, and the adoption decree would be sufficient under the CCA. Based on DHS's representations, Lisa and Blanca assumed that Blanca was a United States citizen since her adoption.\\nIn 2006, Blanca applied for a driver's permit, but her application was denied because her Social Security card had her former last name instead of Catt. Blanca sought to update her Social Security record and to obtain a new card with the name Catt, but the Social Security Administration denied her request because Blanca's adoption certificate and adoption judgment were insufficient proof of her citizenship.\\nTo obtain adequate proof of Blanca's citizenship, Lisa filed an N-600 Application for Certificate of Citizenship with USCIS in February 2007. USCIS sent Blanca a letter dated August 2, 2007, denying her request for a certificate of citizenship because Blanca's original entry into the United States was illegal and Blanca was never lawfully admitted to the United States as a permanent resident. According to USCIS's letter, to obtain United States citizenship for Blanca, Lisa would be required to file an 1-130 Petition for Alien Relative, so that Blanca would first become a lawful permanent resident, a prerequisite to citizenship. After receiving USCIS's letter, Lisa believed that \\\"it was only a matter of paperwork, fees, and time to establish Blanca as a citizen\\\" and it was her \\\"job to correctly process the paperwork that DHS failed to do correctly.\\\"\\nOn or around November 6, 2007, Lisa filed an 1-130 form with USCIS to request permanent resident status for Blanca. Because the 1-130 form allowed Lisa to petition on behalf of Blanca until Blanca turned 21 years old, Lisa was unaware that, if Blanca's immigration forms were not processed before Blanca turned 18 years old, she would be subject to \\\"penalties.\\\" Sometime after June 2009, Lisa was approved to act as Blanca's agent for her immigrant visa petition, and Lisa paid the fees required for the immigrant visa in September 2009. At that time, Lisa continued to believe that it was \\\"just a matter of time and more paperwork before Blanca would get an immigrant visa.\\\"\\nAlso in September 2009, for the first time, Lisa contacted immigration attorneys to assist her with Blanca's immigrant visa application. An immigration attorney advised Lisa that, because Blanca was over 18 years old and considered an illegal alien, she would need to leave the United States and remain in Mexico for a minimum of three years until a visa was issued to her. The immigration attorney also advised Lisa that, after Blanca turned 19 years old in October 2009, the three-year bar to reenter the United States would increase to 10 years.\\nII. PROCEDURAL HISTORY\\nOn October 6, 2009, plaintiffs sent DHS a tort claims notice that alleged that DHS and its agents had acted negligently and attached a copy of a complaint; DHS received the notice. Plaintiffs filed their complaint in the Multnomah County Circuit Court on October 7, 2009, before Blanca's nineteenth birthday.\\nPlaintiffs brought two separate claims for negligence against DHS. First, in plaintiffs' preadoption negligence claim, as stated in their second amended complaint, they alleged that DHS owed a special duty to plaintiffs and breached that duty when DHS (1) \\u00a3\\u00a3fail[ed] to properly process Blanca's permanent residency documentation such that Blanca would become a permanent resident of the United States as a Special Immigrant Juvenile[] *\\\"; (2) \\u00a3\\u00a3fail[ed] to properly and timely refile\\\" Blanca's permanent residency documentation; (3) \\u00a3\\u00a3fail[ed] to advise [Lisa] and Blanca of the consequences of [DHS's] failure to obtain permanent residency status for Blanca\\\"; (4) \\u00a3\\u00a3fail[ed] to advise [Lisa] and Blanca to seek permanent residency status for Blanca before she attained the age of 18\\\"; and (5) made \\\"false representations as to Blanca's citizenship status.\\\" In their post-adoption negligence claim, plaintiffs alleged that DHS was similarly negligent after the adoption was final, with only slight variations from the allegations in their preadoption claim: (1) instead of alleging that DHS failed to properly process the permanent residency documents, plaintiffs alleged that DHS failed to determine whether the applications were successful; (2) instead of alleging that DHS failed to advise plaintiffs of the consequences of the failure to obtain legal permanent residency for Blanca, plaintiffs alleged that DHS failed to tell plaintiffs about the failure; and (3) plaintiffs alleged that DHS also made false representations about Blanca's permanent residency status and her citizenship.\\nDHS moved for summary judgment, providing three separate arguments as to why plaintiffs' claims for relief fail as a matter of law. First, DHS argued that plaintiffs failed to timely provide their tort claims notice as required by ORS 30.275. Second, DHS argued that plaintiffs' claims for relief are barred by the statute of limitations. DHS asserted that plaintiffs' action accrued on August 2, 2007, when Lisa received the letter from USCIS indicating that Blanca was not a citizen, and that plaintiffs waited too long \\u2014 until October 2009, over two years later \\u2014 to provide notice and file their action. Lastly, DHS argued that plaintiffs' preadoption claim for relief was barred by the statute of ultimate repose, because DHS's alleged negligence occurred more than 10 years before plaintiffs filed their complaint.\\nThe trial court issued three separate letter opinions in response to DHS's motion for summary judgment. In its first letter opinion, the trial court granted DHS's motion for summary judgment on both claims after concluding that, once USCIS had sent the August 2, 2007, letter to Blanca denying her request for certificate of citizenship and plaintiffs had received it, \\\"plaintiffs discovered that defendants were responsible for the injuries that plaintiffs had suffered\\\" and this was sufficient \\\"to trigger the tort claim notice and statute of limitations periods.\\\" The trial court also concluded, alternatively, that plaintiffs' preadoption claim was barred by the statute of ultimate repose.\\nPlaintiffs asked the trial court to reconsider its rulings. They argued that, even if plaintiffs had discovered their injury in August 2007, Blanca's tort claims notice was timely because ORS 12.160 tolls claims for minors. Before the trial court entered judgment consistently with its first letter opinion, the court issued a second letter opinion, ruling that Blanca's preadoption claim survived because she filed her complaint before the limitations period had expired, and Blanca was not required to provide DHS with a tort claims notice for its actions while she was in the state's custody. However, the court did not address whether the statute of ultimate repose applied. In the trial court's third letter opinion, it determined that the statute of ultimate repose barred plaintiffs' preadoption claim. The trial court then granted DHS's motion for summary judgment and entered a general judgment dismissing all of plaintiffs' claims.\\nIII. ANALYSIS\\nOn appeal, plaintiffs assign as error the trial court's ruling granting summary judgment in favor of DHS. We apply the familiar standard of review: summary judgment is appropriate if there is no genuine issue of material fact for trial, and the moving party is entitled to judgment as a matter of law. ORCP 47 C; Brehm v. Caterpillar, Inc., 235 Or App 274, 278, 231 P3d 797, rev den, 349 Or 245 (2010). Brehm, 235 Or App at 278 (quoting ORCP 47 C). And if there is no issue of material fact in dispute, we review the trial court's ruling for errors of law. Oregon Southwest, LLC v. Kvaternik, 214 Or App 404, 413, 164 P3d 1226 (2007), rev den, 344 Or 390 (2008).\\n\\\"There is no genuine issue of material fact if, 'based upon the record before the court viewed in a manner most favorable to the adverse party, no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment.'\\\"\\nPlaintiffs reprise their three major arguments in the trial court on appeal. First, they argue that they gave timely notice of their tort claims. Blanca contends that the time period for giving notice was tolled for her until she turned 19 years old, and both plaintiffs argue that they discovered an actionable injury in September 2009, once they learned that Blanca was required to leave the United States and to remain in Mexico for years before a visa allowing her to reside in the United States could be issued to her. Second, plaintiffs argue that they timely commenced their action against DHS, arguing that, under the discovery rule, they filed their complaint within two years of discovering their actionable injury in September 2009. Plaintiffs contend that, at least, issues of material fact exist for trial as to when plaintiffs discovered the existence of an actionable injury. Lastly, plaintiffs assert that the statute of ultimate repose did not bar plaintiffs' preadoption claim because DHS had a continuing duty to establish Blanca as a citizen until she turned 18 years old. Plaintiffs also assert that an \\\"active, continuous relationship\\\" of trust existed between DHS and plaintiffs until Blanca turned 18 years old and that that relationship inhibited plaintiffs from timely recognizing the existence of their claims, thereby tolling the application of the statute of ultimate repose. We address plaintiffs' arguments in turn.\\nA. Timeliness of the Tort Claims Notice\\nThe Oregon Tort Claims Act (OTCA) requires that a person seeking to file an action against a public body provide timely notice of his or her intent to do so. ORS 30.275. That section of the OTCA provides, in part:\\n\\\"(1) No action arising from any act or omission of a public body or an officer, employee or agent of a public body within the scope of ORS 30.260 to 30.300 shall be maintained unless notice of claim is given as required by this section.\\n\\\"(2) Notice of claim shall be given within the following applicable period of time, not including the period, not exceeding 90 days, during which the person injured is unable to give the notice because of the injury or because of minority, incompetency or other incapacity:\\n\\\"(a) For wrongful death, within one year after the alleged loss or injury.\\n\\\"(b) For all other claims, within 180 days after the alleged loss or injury.\\n\\u00abH?\\n\\\"(8) The requirement that a notice of claim be given under subsections (1) to (7) of this section does not apply if:\\n\\\"(a)(A) The claimant was under the age of 18 years when the acts or omissions giving rise to a claim occurred;\\n\\\"(B) The claim is against the Department of Human Services or the Oregon Youth Authority; and\\n\\\"(C) The claimant was in the custody of the Department of Human Services pursuant to an order of a juvenile court under ORS 419B.150, 419B.185, 419B.337 or 419B.527, or was in the custody of the Oregon Youth Authority under the provisions of ORS 419C.478, 420.011 or 420A.040, when the acts or omissions giving rise to a claim occurred.\\\"\\nORS 30.275 (emphasis added). The purpose of the notice period is to allow \\\"the public body to investigate the claim while the evidence is still fresh and allow[] the public body speedily to correct the defect, if any, out of which the claim allegedly arose.\\\" Perez v. Bay Area Hospital, 315 Or 474, 482, 846 P2d 405 (1993).\\nUnder the OTCA, the applicable notice period depends on whether the injured person seeking to bring an action against a public body or employee is an adult or a minor. A competent adult plaintiff must provide notice of a claim within 180 days of the actionable injury; however, this 180-day notice period is extended for minors for a period \\\"not exceeding 90 days, during which the person injured is unable to give the notice * because of minority[.]\\\" ORS 30.275(2). Thus, according to the plain language of ORS 30.275(2), minors have 270 days after the discovery of their alleged injury or loss to give the public body or employee notice of tort claims. See also Perez, 315 Or at 483 (holding that notice of a child's claim was untimely when not provided within 270 days after alleged loss or injury, even though the child had no guardian ad litem). Blanca, however, initially contends that ORS 30.275(2) does not govern in her case.\\n1. Tolling based on Blanca's minority\\nBlanca contends that the period for a minor to provide a notice of tort claims under the OTCA is controlled by ORS 12.160, a tolling provision concerning the time for persons under a disability to bring a tort action, rather than ORS 30.275(2). In part, ORS 12.160 provides:\\n\\\"(1) Subject to subsection (2) of this section, if a person is entitled to bring an action that is subject to the statutes of limitation prescribed by ORS 12.010 to 12.050, 12.070 to 12.250 or 12.276, and at the time the cause of action accrues the person is a child who is younger than 18 years of age, the statute of limitation for commencing the action is tolled for so long as the person is younger than 18 years of age.\\n\\\"(2) The time for commencing an action may not be extended under subsection (1) of this section for more than five years, or for more than one year after the person attains 18 years of age, whichever occurs first.\\\"\\n(Emphasis added.) Although Blanca's claims are subject to the statute of limitations in the OTCA for bringing most claims against a public body or public officers and employees, ORS 30.275(9), Blanca contends that the emphasized text in ORS 12.160 establishes that the tort claims notice period was tolled until she turned 19 years old, by which time she had provided DHS notice of her post-adoption claim. Blanca relies primarily on Baker v. City of Lakeside, 343 Or 70, 82-83, 164 P3d 259 (2007), for support.\\nBaker concerned whether, in amending the OTCA in 1981, the legislature intended to exempt claims under the OTCA from the rule that an action is commenced on the day the complaint is filed if the plaintiff serves process on the defendant within 60 days. 343 Or at 72. From Baker, Blanca concludes that ORS 12.160 tolls the time for commencing an action against a public body until the sooner of two events, which in this case is \\\"one year after the person attains 18 years of age.\\\" See id. at 82 (stating in dicta that claims subject to the two-year limitations period in the OTCA would be tolled for minors under ORS 12.160). She then argues that, just as the limitations period in ORS 30.275(9) is tolled for minors pursuant to ORS 12.160, the legislature intended tolling of the time for providing a tort claims notice, which is a prerequisite to her action against DHS. Blanca suggests that, without parallel tolling of the time for providing a tort claims notice, the tolling of the limitations period for minors often is, practically speaking, meaningless. Thus, Blanca concludes, because the time for filing a tort claims notice was tolled until she turned 19 years old, her notice to DHS was timely.\\nAt the same time, Blanca attempts to distinguish Perez, a case concerning whether the 270-day notice period provided in ORS 30.275(2) was tolled until the appointment of a guardian ad litem for the injured minor. Although the Supreme Court concluded that the purpose of allowing minors to have an extra 90 days to provide notice of tort claims \\\"is to recognize a minor's legal disability and permit the appointment of a guardian ad litem,\\\" 315 Or at 482, it concluded that, to give meaning to the 90-day extension, the 270-day period is not tolled indefinitely pending the appointment of a guardian ad litem. Id. at 483. Consequently, the minor's notice in Perez was untimely. Id. Blanca argues that Perez does not control this case because the court did not consider the inconsistency between a 270-day notice period in the OTCA, regardless of the minor's age at the time of injury, and ORS 12.160, which tolls the limitations period for a minor to commence a tort action until up to one year after the minor attains the age of 18 years.\\nWe agree with DHS that, even if there is some inconsistency between ORS 30.275(2) and ORS 12.160, the legislature expressly specified in the OTCA that the notice period is tolled for a period \\\"not exceeding\\\" 90 days due to minority. Nothing in the text of that statutory provision suggests that an additional tolling period will apply for minors. In addition to the specificity of the OTCA, the purpose of the notice requirement, recognized in Perez, 315 Or at 482, supports application of the relatively short 270-day notice period.\\nWe also note that the Supreme Court has previously described the interplay between ORS 30.275(2) and ORS 12.160. In Bradford v. Davis, 290 Or 855, 861-62, 626 P2d 1376 (1981), the court described the time requirement for providing notice of claims under the OTCA as being independent of the extension of time allowed to minors to commence an action under ORS 12.160:\\n\\\"It is consistent with the remedial policy of the Tort Claims Act to assume that the legislature meant to assure local governments of an early opportunity to investigate claims even by minors, but that thereafter the extension of time to commence an action generally provided to minors and incapacitated persons by ORS 12.160 would apply to the same kinds of actions when brought against a public defendant.\\\"\\nAccordingly, we conclude that, under ORS 30.275(2), minors are required to give notice of a tort claim to a public body and its employees within 270 days of the discovery of their alleged injuries, and ORS 12.160 does not toll this notice period.\\n2. Tolling based on the discovery rule\\nHaving decided that ORS 12.160 did not toll the period for Blanca to provide a tort claims notice to DHS for her post-adoption claim, we turn, next, to plaintiffs' argument that both Blanca's and Lisa's tort claims notice periods were tolled by the discovery rule. As previously noted, the 180-day notice period for adults, and the 270-day notice period for minors, begins to run from the date of the \\\"alleged loss or injury.\\\" ORS 30.275(2). This accrual date, however, can be tolled under the discovery rule. Adams v. Oregon State Police, 289 Or 233, 238, 611 P2d 1153 (1980).\\nUnder the discovery rule, the notice period begins to run when \\\"the plaintiff knows or, in the exercise of reasonable care should know, facts that would make an objectively reasonable person aware of a substantial possibility that an injury occurred, the injury harmed one or more of the plaintiff's legally protected interests, and the defendant is the responsible party.\\\" Edwards v. DHS, 217 Or App 188, 197, 175 P3d 490 (2007) (internal quotation marks and citations omitted; emphasis added). The question of whether a plaintiff, in the exercise of reasonable care, should have discovered that she was injured by the tortious act of another is ordinarily a \\\"factual question for determination by a jury.\\\" Kaseberg v. Davis Wright Tremaine, LLP, 351 Or 270, 278, 265 P3d 777 (2011); see Stevens v. Bispham, 316 Or 221, 228, 851 P2d 556 (1993) (\\\"Depending on the case, the question of when harm occurs may be a question of fact or a question of law.\\\").\\nThe trial court concluded as a matter of law that plaintiffs discovered their injury in August 2007, upon their receipt of the letter from USCIS. The question before us, then, is whether a reasonable jury could conclude that plaintiffs discovered or should have discovered a legally cognizable injury \\u2014 i.e., harm, causation, and tortious conduct \\u2014 within 180 days (Lisa) or 270 days (Blanca) of their providing their tort claims notice to DHS in October 2009. On appeal, the parties dispute what constitutes plaintiffs' harm and when plaintiffs discovered or should have discovered that harm.\\nIn DHS's view, the harm plaintiffs alleged that they suffered was Blanca's lack of legal permanent resident status and United States citizenship. DHS asserts that plaintiffs were actually aware that they suffered their harm when they received the August 2007 letter from USCIS informing them that \\\"Blanca [was] not a citizen or legal permanent resident of the United States[,]\\\" making plaintiffs' tort claims notice untimely.\\nPlaintiffs argue that, although they became aware that Blanca was not a legal permanent resident or citizen when they received the August 2007 letter, they were not aware of their harm until they were informed by the immigration attorney, in September 2009, that Blanca was unable to become a permanent resident \\u2014 a requirement for citizenship \\u2014 without leaving the United States and remaining in Mexico for three years, initially, and then 10 years once Blanca turned 19 years old. In other words, in plaintiffs' view, the harm to which DHS subjected plaintiffs was the prospect of Blanca's removal and exclusion from this country and separation from her home and family for at least a decade before she could become a legal permanent resident. In light of that harm, plaintiffs contend that, at the very least, the date by which they were obligated to provide a tort claims notice to DHS is a jury question. DHS's rejoinder is that, although plaintiffs were further harmed by Blanca being required to leave the United States once she reached the age of majority, that is not a separate actionable harm.\\nAlthough we agree with DHS that, in part, plaintiffs alleged that Blanca's lack of citizenship, stemming from the failed application for legal permanent resident status, was a harm, we agree with plaintiffs that this case involves a different harm as well. In their complaint, plaintiffs alleged two different harms. One was to Blanca's right to citizenship and a second harm was to Blanca's right to remain in the United States, without being subjected to deportation proceedings, without being required to travel to Mexico to apply for an immigrant visa, and without being subjected to exclusion from this country for a decade or more to obtain legal permanent residency.\\nWith regard to the first type of harm, plaintiffs alleged that, had DHS properly filed the 1-360 and 1-485 forms, Blanca would have become a permanent resident and her initial illegal entry into the United States when she was three years old would have been waived. That, in turn, would have allowed her to become a United States citizen immediately had she applied for naturalized citizenship before she reached age 18. Plaintiffs alleged economic harm, including the legal expenses for immigration counsel and the financial consequences of Blanca's inability to be lawfully employed or to receive financial aid to go to college, and extreme emotional distress as a result.\\nBut plaintiffs also alleged that DHS's initial improper filing of Blanca's permanent residency documents (and failure to refile them) and its misleading of Lisa subjected Blanca to \\\"the necessity of departing [from] the United States\\\" and \\\"the 10-year bar to reentry to the United States\\\" when she does so. Plaintiffs alleged that they suffered extreme emotional distress due to the fear and uncertainty that came with Blanca's status as an illegal alien in the United States and the anguish that she would be subject to deportation to Mexico, exclusion from the United States, and lengthy separation from her home and family. In other words, as plaintiffs' expert explained, Blanca and Lisa were harmed because Blanca was subject to deportation and needed to depart and to remain outside the United States for at least 10 years in order to be allowed to return to the United States legally, absent a waiver based on extreme hardship. That is a separate actionable harm from Blanca's lack of citizenship. Cf. Gaston v. Parsons, 318 Or 247, 260, 864 P2d 1319 (1994) (informed consent claim against doctor was untimely because the plaintiff knew that he had not been informed that a risk of surgery was loss of use of his arm, but claim that doctor negligently performed surgery, although related to consent claim, involved a separate harm).\\nDHS also argues that plaintiffs merely allege that they suffered additional damages, relying on cases in which we have stated that a tort claim \\\"'accrues from the date the injury is, or should have been discovered, not from the time the full extent of damages is ascertained.'\\\" Edwards, 217 Or App at 198 (quoting Raethke v. Oregon Health Sciences Univ., 115 Or App 195, 198, 837 P2d 977 (1992), rev den, 315 Or 442 (1993)). DHS's argument misses the mark, given our holding that plaintiffs alleged two different harms.\\nBased on plaintiffs' second theory of harm, a reasonable jury could easily find on this record that, when they received the letter from USCIS in 2007, neither plaintiff actually knew of the harm, that is, Blanca's possible removal and the requirement that she leave and remain outside this country for at least a decade in order to enter legally. When plaintiffs received the letter, Lisa believed that \\\"it was only a matter of paperwork, fees, and time to establish Blanca as a citizen\\\" and that it was her \\\"job to correctly process the paperwork that DHS failed to do correctly.\\\"\\nAs instructed by the USCIS letter, Lisa filed an 1-130 Petition for Alien Relative to establish Blanca's permanent residency, applying for an adjustment of status, and later applied for an immigration visa. Lisa's application indicated that she believed that she could obtain an adjustment of Blanca's status. At that point, based on DHS's prior statements that Blanca was automatically a citizen once she was adopted, plaintiffs believed that it was a matter of paperwork to correct Blanca's citizenship status. Moreover, based on the Petition for Alien Relative, plaintiffs believed they could file that paperwork for Blanca until she turned 21. In her affidavit, Lisa stated, \\\"I was not aware that there would be penalties for Blanca when she was no longer a minor as form 1-130 (Petition for Alien Relative) allowed me to petition [for] my unmarried child up to age 21.\\\"\\nAs previously noted, the August 2007 letter did not indicate that Blanca would have to leave the country if she was not a legal permanent resident before she turned 18 years old. The fact that the letter informed plaintiffs that Blanca was not a citizen or a legal resident does not necessarily imply that she would have to leave the country if she did not obtain legal residency by the age of 18. Lisa testified that, until September 2009, when she contacted the immigration attorney, she did not understand that (1) \\\"Blanca would be subject to a 3-year, and later a 10-year exclusion if citizenship paperwork was not processed by her attaining age 18 or 19\\\"; and (2) even if Blanca did leave the country for the minimum period of time, \\\"there was no guarantee that the * government would actually issue Blanca a visa.\\\" Viewing the evidence in the light most favorable to plaintiffs, a reasonable jury could conclude that they were unaware of their harm until September 2009, when Lisa obtained immigration counsel.\\nAlthough DHS focuses on plaintiffs' actual knowledge of cognizable harm in 2007, to the extent that DHS contends that plaintiffs should have discovered their claims by seeking legal advice about the consequences of Blanca's lack of legal permanent resident status and citizenship once they received the letter in 2007, we conclude that is an issue of fact for trial as well. Whether the plaintiff has a duty to inquire about facts that might disclose the existence of an actionable injury at any particular point in time is, generally, a factual question for the jury. Cole v. Sunnyside Marketplace, LLC, 212 Or App 509, 521, 160 P3d 1 (2007), rev den, 344 Or 558 (2008). When a plaintiff has a duty to inquire, the jury must determine the point in time when the plaintiff reasonably should have learned that the elements of an actionable injury exist. Greene v. Legacy Emanuel Hospital, 335 Or 115, 123, 60 P3d 535 (2002) (if a plaintiff acquires information that \\\"only would cause a reasonable person to inquire whether legally cognizable harm has occurred, the period of limitations would commence at some later point when, after inquiry, the facts reasonably should disclose the existence of an actionable injury\\\").\\nIn this case, a reasonable jury could find that, when plaintiffs received the USCIS letter, they did not have a duty to retain an expert, such as a lawyer, to investigate whether they had a claim against DHS related to Blanca's legal permanent resident status and citizenship and instead acted reasonably by attempting to rectify the situation with immigration authorities. At the time, plaintiffs did not know that Blanca would be subject to years of exclusion from the United States after she turned 18 years old in order to obtain a legal immigrant status in the United States. Plaintiffs had no knowledge of facts indicating that what they thought was Blanca's relatively easy pathway to legal residency and citizenship was available to her only while she was a minor. The letter from USCIS did not indicate that Blanca would be subject to any immigration penalties; rather, the letter indicated that Lisa was able to act on behalf of Blanca until Blanca was 21 years old and suggested to Lisa that she would be able to correct Blanca's immigration status. Lisa believed she could correct Blanca's citizenship status by following USCIS's instructions without the aid of an attorney. We cannot say, as a matter of law, that it was unreasonable for plaintiffs to make that assumption and that plaintiffs had an immediate duty to investigate a potential claim against DHS by hiring an immigration lawyer.\\nWe also reject DHS's argument that, even if plaintiffs were not aware of each specification of negligence relevant to their two claims for relief, their obligation to provide a tort claims notice arose when they became aware of a substantial possibility that they had \\\"suffered some harm as a result of' DHS's alleged negligence. Cairns v. Dole, 195 Or App 742, 751, 99 P3d 781 (2004) (emphasis in original). DHS notes that plaintiffs were at least aware of some harm \\u2014 that Blanca was not an American citizen\\u2014 contrary to what DHS had led plaintiffs to believe.\\nIn making that argument, DHS overlooks the import of a second distinct type of harm: Blanca was subject to deportation proceedings, was required to travel to Mexico to apply for an immigrant visa, and was subject to exclusion from this country for a decade or more to obtain legal permanent resident status. See Gaston, 318 Or at 260, (\\\"[W]hen two different legally protected interests are at stake, awareness of a violation of one interest does not put a plaintiff on notice as a matter of law of the possible violation of other distinct legally protected interests. Each claim must be analyzed separately to determine if a plaintiff knew or should have known facts that would make a reasonable person aware of a substantial possibility that the legally protected interest had been invaded.\\\"). As previously noted, the summary judgment record reflects evidence from which a jury may conclude that there was a second harm and that plaintiffs acted reasonably when they did not consult an immigration attorney upon receipt of the letter from USCIS in 2007. On this record, a jury must decide the question; we simply cannot say, as a matter of law, that plaintiffs' knowledge of Blanca's lack of permanent residency status and citizenship in 2007 triggered the time for providing a tort claims notice concerning the second harm to plaintiffs. Accordingly, the trial court erred in entering summary judgment in favor of DHS for lack of a timely tort claims notice.\\nB. Timeliness of the Complaint Under the Statute of Limitations\\nDHS argues that, even if plaintiffs' claims are not barred because their tort claims notice was untimely, their claims are nonetheless barred by the statute of limitations, ORS 30.275, because they discovered their claims in August 2007 but filed this action more than two years later, in October 2009. Like the notice period, the statute of limitations can also be tolled by the discovery rule. Stephens v. Bolman, 314 Or 344, 349-50, 838 P2d 600 (1992), rev dismissed, 324 Or 177 (1996).\\nDHS's statute of limitations arguments rely on the same case law and are essentially the same as their arguments that plaintiffs' tort claims notice was untimely served. As previously explained, we cannot conclude, as a matter of law, when plaintiffs should have discovered their actionable injury based on the harm to Blanca's right to remain in the United States. DHS is not entitled to summary judgment on that portion of plaintiffs' claims for failing to timely commence the action.\\nC. Statute of Ultimate Repose\\nFinally, plaintiffs also assign as error the trial court's alternative ruling that plaintiffs' preadoption claim is barred by the statute of ultimate repose. The statute of ultimate repose, ORS 12.115, provides, in part:\\n\\\"(1) In no event shall any action for negligent injury to person or property of another be commenced more than 10 years from the date of the act or omission complained of.\\\"\\nDHS asserted and prevailed on its contention that plaintiffs' preadoption claim is barred because DHS's alleged negligent acts occurred more than 10 years before plaintiffs filed their complaint.\\nUnlike the statue of limitations, the discovery rule does not toll the statute of ultimate repose, because it was intended \\\"to provide an overall maximum upper limit on the time within which a tort action could be brought, regardless of the date of discovery or of any other circumstances.\\\" Josephs v. Burns & Bear, 260 Or 493, 498, 491 P2d 203 (1971), overruled on other grounds by Smothers v. Gresham Transfer, Inc., 332 Or 83, 23 P3d 333 (2001). But when a plaintiff's claim is based on violations of a defendant's continuing, mandatory duty that occurred within the 10-year period, the claim is not barred by the statute of ultimate repose and, therefore, is timely. Little v. Wimmer, 303 Or 580, 585, 739 P2d 564 (1987).\\nRelying on Little, plaintiffs contended that DHS had such a continuing duty to them until Blanca turned 18 years old, and so the statute of ultimate repose was inapplicable. The trial court rejected that argument, concluding that, although\\n\\\"plaintiffs did establish certain duties that the state owed the plaintiffs, * [the court] do[es] not find that those duties are by their terms capable of absorbing the state's pre-adoption, [discrete] acts of the alleged negligence into a larger, overarching duty that expired only when Blanca reached majority.\\\"\\nPlaintiffs also argued that the statute of ultimate repose was tolled because they had a continuous relationship of trust with DHS. The statute of ultimate repose can be tolled by an \\\"active, continuous relationship\\\" between the defendant and the plaintiff during the period when an action is permitted such that, because of the \\\"relationship of trust and confidence\\\" between the parties, the plaintiff is not in a position to recognize the existence of a claim against the defendant. Cavan v. General Motors, 280 Or 455, 457-58, 571 P2d 1249 (1977). The trial court rejected that argument, too.\\nOn appeal, plaintiffs reiterate their two arguments as to why their preadoption claim is not barred by the statute of ultimate repose. We first address the continuing-duty argument.\\n1. Continuing Duty\\nAs noted above, evidence of a continuous, mandatory duty can be used to avoid the applicability of the statute of ultimate repose. Little, 303 Or at 585. In Little, the plaintiffs brought an action against the state for negligent design, construction, and maintenance of a state highway. 303 Or at 583. The Supreme Court held that the plaintiffs' claims for negligent design and construction were barred by the statute of ultimate repose because the conduct giving rise to those claims occurred 10 years before they filed their complaint. Id. However, the plaintiffs' claims for negligent maintenance of a highway, including negligent failure to remedy a dangerous condition and failure to warn, were not time-barred because the state had a statutorily mandated, continuing duty to supervise and control the maintenance oil the highway after its construction and through the date of the accident. Id. at 585. Plaintiffs argue that Little is analogous to this case. Specifically, they contend that DHS owed mandatory duties to plaintiffs in the form of care, supervision, and services, because Blanca was placed in DHS's custody before she was adopted, and DHS's duties continued up until Blanca turned 18 years old, even after her adoption.\\nDHS counters that plaintiffs' reliance on Little is misplaced. We understand DHS's argument to be that plaintiffs' preadoption claim is not properly based on violations of a continuing duty on the part of DHS, but, rather, it is based on DHS's alleged negligent acts that occurred more than 10 years before the action was commenced and that DHS failed to correct before Blanca was adopted. According to DHS, in those circumstances, the statute of ultimate repose bars plaintiffs' preadoption claim unless plaintiffs can show a relationship of trust; and, because there is nothing in the record that would permit the conclusion that the parties were in a relationship of trust, plaintiffs' preadoption claim is barred. For the following reasons, we agree with DHS that Little does not apply and reject plaintiffs' continuing, mandatory duty argument.\\nPlaintiffs specifically rely on former OAR 413-130-0170(1) (9/17/96), an administrative rule regarding post-adoption services, which provided:\\n\\\"Freeing a special needs child for adoption through [DHS] presupposes a commitment by the agency to the child until the child reaches the age of 18 years or emancipation, whichever comes first. [DHS] assumes an obligation to the child, the adoptive parent(s) and to the family as a whole to maintain the placement through the delivery of adoption preservation services.\\\"\\nThe term \\\"special needs\\\" includes a member of an ethnic, racial, or cultural minority\\\" that includes Hispanics. Because Blanca is Hispanic, her family was eligible for post-adoption services. Former OAR 413-130-0020(2)(c) (9/17/96). Families that were eligible for post-adoption services could access services provided by DHS, other agencies, or community services, \\\"such as counseling, adoptive parent's support group, family resource or unity meeting, respite care, temporary out-of-home care or residential treatment[.]\\\" Former OAR 413-130-0180(2) (9/17/96). Plaintiffs note that Blanca and her family received post-adoption services from DHS in the form of a subsidy and health insurance benefits for Blanca until she reached 18 years of age.\\nPlaintiffs also rely on other administrative rules that require DHS to verify a child's citizenship for certain services, such as foster care or adoption assistance, that, in turn, are reserved for children who are citizens or \\\"qualified aliens.\\\" Plaintiffs assert that, because Blanca was in foster care and received adoption assistance (in the form of preadoption and post-adoption subsidies), DHS was required to verify Blanca's citizenship status. Plaintiffs also cite OAR 413-215-0411(2)(b)(H) (10/17/08), an administrate rule that requires a private adoption agency, licensed by DHS, to itemize the \\\"[ljikely charges of the U.S. Citizenship and Immigration Services\\\" to the adoptive family, arguing that DHS should be held to an analogous duty to disclose costs and consequences of any likely actions by the USCIS.\\nBased on those rules, plaintiffs conclude that DHS had a continuous duty to secure citizenship for her. According to plaintiffs, because DHS \\\"knew that Blanca's citizenship status had not been finalized,\\\" it had a continuous duty, until Blanca turned 18, to provide services to ensure Blanca would become a citizen in order to \\\"preserve\\\" her adoption. Plaintiffs argue that the statute of ultimate repose was not triggered until plaintiffs stopped receiving post-adoption services when Blanca turned 18 years old, 11 months before they filed their complaint; therefore, their preadoption claim is timely.\\nLittle is inapplicable. Unlike the defendant in Little, DHS was not required, under the statutes or administrative rules cited by plaintiffs, to establish Blanca's citizenship after she was adopted. Although plaintiffs received some financial subsidies from DHS after she was adopted because Blanca was a qualified \\\"special needs child,\\\" none of the rules on which plaintiffs relies created a mandatory duty that DHS secure Blanca's citizenship to preserve her adoption. Specifically, with respect to OAR 413-130-0040(3)(c) (7/1/08), on its face, the rule concerns verification of either citizenship or \\\"qualified alien\\\" status for eligibility for certain benefits, not a duty to secure citizenship or legal permanent resident status. In addition, pursuant to OAR 413-100-0210(2)(h), a \\\"qualified alien\\\" includes a child such as Blanca who \\\"has been battered or subjected to extreme cruelty in the United States\\\" and who otherwise satisfies the requirements of the immigration statute relating to the treatment of certain battered aliens. Accordingly, even assuming that OAR 413-130-0040(3)(c) (7/1/08) applied to the subsidies provided to plaintiffs, the rule did not require DHS to verify that Blanca was in fact a citizen if she was a \\\"qualified alien.\\\" Furthermore, although DHS was required to provide post-adoption services, DHS did not assume an obligation to provide all post-adoption services possible to help \\\"preserve\\\" an adoption, including establishing a child's citizenship. Rather, DHS had discretion as to which services were made available to adoptive families based on its resources. See OAR 413-130-0180 (9/17/96) (\\\"Post legal adoptive services will be determined by the availability of [DHS] and community resources.\\\").\\nNor does plaintiffs' reliance on other administrative rules show that DHS assumed any continuing, mandatory duty owed to plaintiffs. As DHS highlights, OAR 413-130-0040(3)(c) (7/1/08), the administrative rule that obligates DHS to verify a child's status either as a citizen or a \\\"qualified alien\\\" for eligibility to receive certain services, was not in effect until 2008, well after Blanca's 1999 adoption. Similarly, we reject plaintiffs' contention that, under OAR 413-215-0411(2)(b)(H) (10/17/08), DHS, like private adoption agencies, had a continuous duty to plaintiffs to disclose the costs and consequences of any likely action by USCIS. Assuming DHS had an analogous requirement, any duty to provide Lisa and her then-husband, a prospective adoptive family, with information regarding the cost of Blanca's adoption was breached in the 1990s. The duty runs to prospective adoptive families; the text of the rule does not suggest that the agency has a continuous duty to provide that information after families adopted children. See OAR 413-215-0411(2)(b) (10/12/08) (\\\"Before providing an adoption service to a prospective adoptive parent, the adoption agency must itemize and disclose in writing to the parents the estimated fees and expenses the parent will be changed[.]\\\" (Emphasis added.)). Accordingly, none of the administrative rules that plaintiffs cite establishes that DHS had the continuing, mandatory duty to establish Blanca's citizenship or permanent residency, which, according to plaintiffs, avoids the application of the statute of ultimate repose.\\n2. Relationship of Trust\\nThe resolution of the continuing duty issue leads to plaintiffs' second, tolling-based argument concerning the statute of ultimate repose. Absent an ongoing relationship of trust between the parties, \\\"the legislature did not intend the statute [of ultimate repose] to be circumvented by allegations that subsequent to the fundamental wrong, a continuing duty existed to rectify the results of such wrong.\\\" Josephs, 260 Or at 501-02. In this case, plaintiffs contend that they had such a relationship of trust with DHS.\\nPlaintiffs argue that they were dependent on DHS for care and services even after Blanca's adoption, because Blanca was an abused, special needs child. Plaintiffs analogize the parties' relationship to a doctor-patient relationship. See Cavan, 280 Or at 458 (in dicta, explaining that the doctor-patient relationship might create a relationship of trust). Plaintiffs argue that, just as a patient relies on a doctor's assurances, they relied on DHS's assurances that, after the adoption Blanca would become a citizen because of DHS's position of authority. Specifically, plaintiffs contend that they relied on DHS's representation to them in 2000 that, after the passage of the CCA, Blanca would become an American citizen because her adoptive parents were American citizens.\\nDHS contends that, after Blanca's adoption was complete, the parties were not in an ongoing relationship of any significance that would have prevented plaintiffs from recognizing their alleged injury, as described in Cavan, 280 Or at 457-58. Although plaintiffs received financial subsidies after Blanca was adopted, DHS contends that, as a matter of law, that did not create a relationship of trust that tolled the statute of ultimate repose.\\nWe agree with DHS that the parties did not have an ongoing relationship of trust that extended years after the adoption. In 2000, DHS conferred with Lisa and explained that, after the passage of the CCA, Blanca would automatically become a citizen because her adoptive parents were United States citizens. There is no evidence of any other communications between the parties from 2000 to 2009. Plaintiffs point only to the payments they received from DHS and the existence of some administrative rules as their evidence that they had a relationship of trust with DHS after Blanca was adopted. That evidence, however, would not permit a reasonable factfinder to conclude that there was \\\"an active, continuous relationship\\\" of trust between the parties, at least between 2000 and 2009 after Lisa's communications with DHS ceased, such that plaintiffs were unable to recognize the existence of a cause of action. See Rutter v. Neuman, 188 Or App 128, 136-37, 71 P3d 76 (2003) (explaining that there was \\\"no evidence of any conversations, correspondence, or other communications\\\" for years and that nothing demonstrated the existence of the sort of \\\"relationship of trust and confidence with the defendant\\\" that the Cavan court held was necessary to toll the statute of ultimate repose). At best, Lisa trusted DHS when it told her that Blanca was a citizen in 2000, but thereafter, Lisa, as Blanca's parent, acted without consultation with or guidance or interference from DHS on any matter, including matters related to Blanca's immigration status. The statute of ultimate repose was not tolled, and plaintiffs' preadoption claims, which were more than 10 years old when plaintiffs filed their complaint, are barred.\\nIn light of the foregoing, the trial court correctly dismissed plaintiffs' preadoption claim, which pertains to alleged negligent acts by DHS that occurred before Blanca's adoption, more than 10 years before plaintiffs filed their complaint. We also accept DHS's argument that some of plaintiffs' allegations concerning DHS's negligent acts are, in effect, alleged failures to remedy past and time-barred negligent conduct in applying for Blanca's legal permanent resident status and, therefore, are also barred by the statute of ultimate repose. To the extent that plaintiffs allege such time-barred negligent acts in their post-adoption claim, those specifications of negligence are no longer actionable. What remains at issue are other negligent acts specified in plaintiffs' post-adoption claim, such as negligent misrepresentations in 2000, that allegedly resulted in the penalties Blanca has experienced, namely, her need to depart the United States with an exclusion from the United States for 10 years before she can apply for a visa to reenter this country legally. Whether plaintiffs timely asserted such allegations of negligence through their tort claims notice to DHS and by filing this action is a question for the jury, because there is a factual question as to the date plaintiffs knew or should have known that they had suffered harm to Blanca's right to remain in the United States.\\nAffirmed in part, reversed in part, and remanded.\\nFor clarity, we refer to the individual plaintiffs by their first names.\\nDefendants on appeal include DHS employees Dunn and Dillner. We refer to defendants collectively as \\\"DHS\\\" unless the context requires otherwise. Other defendants unrelated to DHS were dismissed from the action before the summary judgment proceedings at issue.\\nSection 320 of the CCA provides:\\n\\\"(a) A child horn outside of the United States automatically becomes a citizen of the United States when all of the following conditions have been fulfilled:\\n\\\"(1) At least one parent of the child is a citizen of the United States, whether by birth or naturalization.\\n\\\"(2) The child is under the age of eighteen years.\\n\\\"(3) The child is residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence.\\n\\\"(b) Subsection (a) of this section shall apply to a child adopted by a United States citizen parent if the child satisfies the requirements applicable to adopted children under section 1101(b)(1).\\\"\\n8 USC \\u00a7 1431. Thus, if Blanca had been lawfully admitted for permanent residency, she would have been eligible for citizenship automatically after the enactment of the CCA.\\nThe August 2007 letter incorrectly stated that Blanca's \\\"Application for Citizenship\\\" was denied when the application was actually for a certificate of citizenship, not an application for citizenship.\\nIn their complaint, plaintiffs allege a single claim of negligence, but the parties and the trial court have treated it as two separate claims.\\nThe trial court ruled, and it is undisputed on appeal, that Blanca was not required to give DHS a tort claims notice for her preadoption claim, because all of the requirements for dispensing with notice in ORS 30.275(8) are met in this case: Blanca was under the age of 18 when the claimed negligence occurred, the claim is against DHS, and she was in DHS's custody at the time of the negligent acts. Thus, the parties dispute whether Blanca's tort claims notice was timely only as to her post-adoption claim.\\nIn part of their response, plaintiffs argue that the trial court erred when it imputed Lisa's knowledge of the August 2007 letter to Blanca. Plaintiffs contend that Blanca was 17 years old when the letter was received and that there is nothing in the record to suggest that Blanca read the letter or understood the consequences resulting from the information in the letter. However, the letter from USCIS was addressed to Blanca, and, contrary to plaintiffs' assertion, Lisa's affidavit affirmatively states that Blanca was aware that she was not a citizen of the United States after she received the August 2007 letter.\\nPlaintiffs do not seriously defend the timeliness of their notice of tort claims based on Blanca's lack of citizenship. Plaintiffs knew in 2007 that Lisa had asked DHS to finalize American citizenship for Blanca and yet Blanca lacked citizenship, contrary to DHS's representations. The trial court did not err in dismissing the portion of plaintiffs' claims based on that theory of harm.\\nSee OAR 413-100-0120(3)(b) (verification of child's U.S. citizenship status for foster care eligibility); OAR 413-100-0210(1), (2) (an eligible child for foster care must be a \\\"United States citizen\\\" or a \\\"qualified alien\\\"); OAR 413-100-0460(1) (12/29/95) (the child must be a United States citizen to be eligible for medical assistance); OAR 413-130-0040(3)(c) (7/1/08) (the child must a United State citizen or a \\\"qualified alien\\\" to be eligible for adoption assistance); OAR 413-130-0045(1) (7/1/09) (adoption assistance is limited to United States citizens).\\nPlaintiffs raised two additional arguments as to why the statute of ultimate repose should be tolled. Those arguments rely on case law that is not controlling in Oregon. Because the case law is unpersuasive in light of Oregon law, we reject plaintiffs' arguments without further discussion.\"}"
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+"{\"id\": \"4270920\", \"name\": \"In the Matter of L. S., Alleged to be a Mentally Ill Person. STATE OF OREGON, Respondent, v. L. S., Appellant\", \"name_abbreviation\": \"State v. L. S.\", \"decision_date\": \"2014-04-02\", \"docket_number\": \"130969974; A155425\", \"first_page\": \"174\", \"last_page\": \"175\", \"citations\": \"262 Or. App. 174\", \"volume\": \"262\", \"reporter\": \"Oregon Reports, Court of Appeals\", \"court\": \"Oregon Court of Appeals\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T23:27:02.570666+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.\", \"parties\": \"In the Matter of L. S., Alleged to be a Mentally Ill Person. STATE OF OREGON, Respondent, v. L. S., Appellant.\", \"head_matter\": \"Submitted February 10,\\nreversed April 2, 2014\\nIn the Matter of L. S., Alleged to be a Mentally Ill Person. STATE OF OREGON, Respondent, v. L. S., Appellant.\\nMultnomah County Circuit Court\\n130969974; A155425\\n325 P3d 758\\nGarrett A. Richardson and Multnomah Defenders, Inc., filed the brief for appellant.\\nEllen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Michael R. Salvo, Assistant Attorney General, filed the brief for respondent.\\nBefore Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.\\nPER CURIAM\", \"word_count\": \"161\", \"char_count\": \"1034\", \"text\": \"PER CURIAM\\nAppellant seeks reversal of a judgment committing her pursuant to ORS 426.130 for a period not to exceed 180 days. Appellant argues that, contrary to the trial court's ruling, the record does not establish by clear and convincing evidence any of the bases for commitment under ORS 426.005. The state concedes that the evidence is legally insufficient for involuntary commitment and that the judgment should be reversed. We agree, accept the state's concession, and reverse.\\nReversed.\"}"
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+"{\"id\": \"4338665\", \"name\": \"STATE OF OREGON, Plaintiff-Respondent, v. JAMIR ELIGAH IBABAO, aka Jamir Elijah Ibaboa, Defendant-Appellant\", \"name_abbreviation\": \"State v. Ibabao\", \"decision_date\": \"2015-04-22\", \"docket_number\": \"120934143; A155420\", \"first_page\": \"508\", \"last_page\": \"511\", \"citations\": \"270 Or. App. 508\", \"volume\": \"270\", \"reporter\": \"Oregon Reports, Court of Appeals\", \"court\": \"Oregon Court of Appeals\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T19:24:23.076279+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Duncan, Presiding Judge, and Lagesen, Judge, and Wollheim, Senior Judge.\", \"parties\": \"STATE OF OREGON, Plaintiff-Respondent, v. JAMIR ELIGAH IBABAO, aka Jamir Elijah Ibaboa, Defendant-Appellant.\", \"head_matter\": \"Submitted October 3, 2014,\\njudgment of conviction on Counts 13 through 16 for kidnapping in the first degree reversed; remanded for resentencing; otherwise affirmed April 22, 2015\\nSTATE OF OREGON, Plaintiff-Respondent, v. JAMIR ELIGAH IBABAO, aka Jamir Elijah Ibaboa, Defendant-Appellant.\\nMultnomah County Circuit Court\\n120934143; A155420\\n348 P3d 336\\nBear Wilner-Nugent filed the brief for appellant.\\nEllen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Rebecca M. Auten, Assistant Attorney General, filed the brief for respondent.\\nBefore Duncan, Presiding Judge, and Lagesen, Judge, and Wollheim, Senior Judge.\\nDUNCAN, P. J.\", \"word_count\": \"868\", \"char_count\": \"5476\", \"text\": \"DUNCAN, P. J.\\nIn this criminal case, defendant appeals the trial court's judgment, which convicted him of, among other crimes, four counts of kidnapping in the first degree (Counts 13-16). On appeal, defendant assigns error to the trial court's denial of his motion for judgment of acquittal on the kidnapping counts. Defendant argues, and the state concedes, that the trial court should have granted his motion because the record does not contain sufficient evidence to establish the asportation element of kidnapping. For the reasons explained below, we agree and, therefore, we reverse the judgment as to defendant's kidnapping convictions, remand for resentencing, and otherwise affirm.\\nORS 163.225 provides that \\\"[a] person commits the crime of kidnapping in the second degree if, with intent to interfere substantially with another's personal liberty, and without consent or legal authority, the person\\\" either \\\"Makes the person from one place to another\\\" or \\\"[s]ecretly confines the person in a place where the person is not likely to be found.\\\" ORS 163.235 provides that \\\"[a] person commits the crime of kidnapping in the first degree if the person violates ORS 163.225 [which defines kidnapping in the second degree]\\\" with any of five listed purposes, including \\\" [t] o terrorize the victim or another person!.]\\\" In this case, each of the four kidnapping counts alleged that defendant \\\"did unlawfully and knowingly, without consent or legal authority, take [the victim] from one place to another, with intent to interfere substantially with the personal liberty of [the victim], and with the purpose of terrorizing [the victim].\\\"\\nTo prove the asportation element of kidnapping\\u2014 that is, to prove that a defendant took a victim \\\"from one place to another\\\"\\u2014the state must prove that the defendant \\\"'change [d] the position of the victim such that, as a matter of situation and context, the victim's ending place [was] qualitatively different from the victim's starting place'\\\" and that \\\"the taking [was] not 'only incidental' to another crime.\\\" State v. Opitz, 256 Or App 521, 533, 301 P3d 946 (2013) (quoting State v. Sierra, 349 Or 506, 513-14, 254 P3d 149 (2010), adh'd to as modified on recons, 349 Or 604, 247 P3d 759 (2011)) (emphasis omitted). Accordingly, we have held that moving a victim between rooms within a residence did not constitute asportation when the movements had \\\"no effect on the extent to which [the] defendant interfered with the victim's personal liberty\\\" and were \\\"in the course and in furtherance of' the defendant's ongoing assault of the victim. Opitz, 256 Or App at 534-36; see also State v. Kinslow, 257 Or App 295, 303-04, 304 P3d 801 (2013) (holding that the defendant's acts of moving the victim to different rooms in a house did not constitute asportation because, \\\" [whatever functional differences\\\" existed between the rooms, \\\"there was nothing about any one of those rooms that increased * [the] defendant's control over the victim or further isolated the victim\\\"); State v. Douglas, 203 Or App 22, 27-29, 125 P3d 751 (2005), rev den, 340 Or 157 (2006) (holding that the defendant's act of ordering one group of victims into a closed tavern constituted asportation, but the defendant's act of directing the movements of others inside the tavern did not).\\nHere, defendant argues, and the state concedes, that the record is insufficient to establish the asportation element of kidnapping. Viewed in the light most favorable to the state, the relevant evidence is that defendant and three companions committed a home-invasion robbery involving five victims. They broke into the home through an attached garage, which had been modified for use as a recreation and sleeping room. In the garage, they encountered three of the victims and forced them at gunpoint into a bedroom in the house, where the fourth victim was sleeping. Later, they found the fifth victim in another bedroom and forced him at gunpoint into the bedroom where the others were. Under Opitz and Kinslow, moving the victims between the rooms does not constitute asportation, both because the victims' starting and ending places were not qualitatively different and because the movements were incidental to the robbery.\\nJudgment of conviction on Counts 13 through 16 for kidnapping in the first degree reversed; remanded for resentencing; otherwise affirmed.\\nIn addition to the four counts of first-degree kidnapping (Counts 13-16), ORS 163.235(l)(d), defendant was charged with, and found guilty of, five counts of robbery in the first degree (Counts 1-5), ORS 164.415; five counts of robbery in the second degree (Counts 6-10), ORS 164.405, which merged with the first-degree robbery counts; and two counts of burglary in the first degree (Counts 11 and 12), ORS 164.225, which merged with each other.\"}"
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+"{\"id\": \"4374018\", \"name\": \"STATE OF OREGON, Respondent, v. DONALD EUGENE SMITH, Appellant\", \"name_abbreviation\": \"State v. Smith\", \"decision_date\": \"1984-01-25\", \"docket_number\": \"M268984; CA A28187\", \"first_page\": \"703\", \"last_page\": \"708\", \"citations\": \"66 Or. App. 703\", \"volume\": \"66\", \"reporter\": \"Oregon Reports, Court of Appeals\", \"court\": \"Oregon Court of Appeals\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-11T01:58:27.694545+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Buttler, Presiding Judge, and Warren and Rossman, Judges.\", \"parties\": \"STATE OF OREGON, Respondent, v. DONALD EUGENE SMITH, Appellant.\", \"head_matter\": \"Argued and submitted September 20, 1983,\\naffirmed January 25, 1984\\nSTATE OF OREGON, Respondent, v. DONALD EUGENE SMITH, Appellant.\\n(M268984; CA A28187)\\n675 P2d 510\\nRobert G. Thuemmel, Portland, argued the cause and filed the brief for appellant.\\nStephen E. Peifer, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Attorney General, and James E. Mountain, Jr., Solicitor General, Salem.\\nBefore Buttler, Presiding Judge, and Warren and Rossman, Judges.\\nWARREN, J.\", \"word_count\": \"1484\", \"char_count\": \"9239\", \"text\": \"WARREN, J.\\nDefendant appeals from his conviction for driving while under the influence of intoxicants. At trial, evidence was introduced that his breathalyzer test produced a blood alcohol reading of .23 percent. He contends that reversible error was committed by admitting in evidence two documents certifying that the breathalyzer equipment was in proper operating order, without requiring the individual who actually inspected the equipment to testify. He claims that the certificates of breathalyzer inspections are inadmissible hearsay and encompass expert testimony. We discuss only the hearsay contention.\\nDefendant concedes that the certificates of breathalyzer inspections would be public records and admissible under OEC 803(8) as an exception to the hearsay rule if it were not for an exclusion found in OEC 803(8) (b), which provides, in pertinent part:\\n\\\"The following are not excluded by Rule 802 of this Act, even though declarant is available as a witness:\\n\\n\\u00ab Records, reports, statements or data compilations, in any form, of public offices or agencies, setting forth:\\n<<\\n\\\"(b) Matters observed pursuant to a duty imposed by law as to which matters there was a duty to report, excluding however, in criminal cases matters observed by police officers and other law enforcement personnel .\\\" (Emphasis supplied.)\\nEssentially, defendant argues that OEC 803(8) (b) excludes the certificates of breathalyzer inspections, because the individual conducting the inspection was \\\"law enforcement personnel\\\" and the certificates relate to \\\"matters observed\\\" in connection with a \\\"criminal case.\\\" The state points out that, before the enactment of OEC 803(8), a certified copy of official records of breathalyzer equipment inspections was admissible as a public record. State v. Coffman, 11 Or App 307, 502 P2d 605 (1972); State v. Woodward, 1 Or App 338, 462 P2d 685 (1969). It goes on to argue that the law in that regard has not been changed by the enactment of OEC 803(8).\\nIn 1981, the Oregon Legislature adopted a comprehensive evidence code, based to a significant extent on the Federal Rules of Evidence. Although there were some deviations from the federal rules, one rule adopted virtually without change was FRE 803(8)(B). The legislative history of a federal act, as well as decisions construing its provisions, are persuasive in construing a state statute that adopts substantially the same terms as the federal act. See U. of O. Co-Oper. v. Dept. of Rev., 273 Or 539, 542 P2d 900 (1975); Karsun v. Kelley, 258 Or 155, 482 P2d 533 (1971); Santiam Fish & Game Ass'n v. Tax Com., 229 Or 506, 368 P2d 401 (1962); Everts v. Holtmann, 64 Or App 145, 667 P2d 1028 (1983).\\nWe conclude that, in adopting FRE 803(8)(B), Congress did not intend to change the common law rule allowing admission of public records of purely \\\"ministerial observations.\\\" Rather, Congress intended to prevent prosecutors from attempting to prove their cases through police officers' reports of their observations during the investigation of crime. United States v. Grady, 544 F2d 598, 604 (2d Cir 1976). We infer that the state legislature adopted OEC 803(8) (b) with the same intent.\\nIn US. v. Union Nacional de Trabajadores, 576 F2d 388 (1st Cir 1978), the prosecution sought to prove service of process by introducing a certified copy of the marshal's return, which stated that he had served an injunction on defendant through an individual officer of the corporation. Defendant objected to the admissibility of the document, claiming that it was hearsay under the codification of the \\\"official records\\\" exception in FRE 803(8) (B). Finding no merit in defendant's argument, the court stated:\\n\\\" A sheriff or marshal reporting the service of process is not reporting in the capacity of a police observer at the scene of a crime, nor is he ordinarily connected with the case in a law enforcement capacity. The 'adversarial' circumstances which might render a law enforcement officer's observations unreliable are unlikely, therefore, to be present:\\n\\\" 'Ostensibly, the reason for this exclusion is that observations by police officers at the scene of the crime or the apprehension of the defendant are not as reliable as observations by public officials in other cases because of the adversarial nature of the confrontation between the police and the defendant in criminal cases.'\\n\\\"S. Rep. No. 1277, 93d Cong., 2d Sess., reprinted in 4 U.S. Code Cong. & Admin. News, pp. 7051, 7064 (1974). In the present case, the injunction was served, and the return of service endorsed, at a time well prior to the alleged contemptuous acts for which appellants were prosecuted. There could have been no motive to falsify for the reason suggested in the above-quoted Senate Report.\\\" 576 F2d at 391.\\nSimilarly, the certificates of breathalyzer inspections do not concern observations by the police officers in the course of a criminal investigation. Rather, they relate to the routine function of testing breathalyzer equipment to insure that it gives accurate readings. See United States v. Grady, supra, 544 F2d at 604. The testing and certification under ORS 487.815(3)(c) is not done in the adversarial context of a particular case that might cloud law enforcement personnel's perception. A review of the congressional debate reveals that FRE 803(8) (B) was intended to preclude only the admission of police reports made in the course of investigation of a particular crime in lieu of the officers' in court testimony, not records of routine, nonadversarial matters such as those in question here. United States v. Orozco, 590 F2d 789, 793 (9th Cir 1979).\\nWe hold that the certificates of breathalyzer inspections are admissible under the public records exception to the hearsay rule. OEC 803(8)(b).\\nDefendant contends that the trial court erred in sustaining the state's objections to his impeachment of the arresting officer from the police training manual. This evidence was excluded because the defense could not show the arresting officer had ever read or been taught the section defendant was attempting to use to impeach. Defendant also contends that the trial court erred in sustaining the state's objections to defendant's line of questioning on cross-examination of the arresting officer's knowledge of alcohol absorption and dissipation rates. Defendant argued that the arresting officer was qualified as an expert witness and therefore should be able to testify as to his knowledge of alcohol absorption and dissipation rates. The trial court correctly rejected these arguments. There was no error.\\nAffirmed.\\nAt the relevant time, ORS 487.545 provided, in part:\\n\\\"(1) At the trial of any civil or criminal action, suit or proceeding arising out of the acts committed by a person driving a motor vehicle while under the influence of intoxicants, if the amount of alcohol in the person's blood at the time alleged is less than .10 percent by weight of alcohol as shown by chemical analysis of the person's breath, blood or urine, it is indirect evidence that may be used with other evidence, if any, to determine whether or not the person was then under the influence of intoxicants.\\n\\\"(2) Not less than .10 percent by weight of alcohol in a person's blood constitutes being under the influence of intoxicating liquor.\\\"\\nORS 487.815(3)(c) requires that the state police employ trained personnel to certify the accuracy of the breathalyzer machines at intervals of not more than 90 days.\\nFRE 803(8) (B) provides, in pertinent part:\\n\\\"Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel\\nDefendant's argument rests almost entirely on United States v. Oates, 560 F2d 45 (2d Cir 1977). That case is distinguishable from the one before us. The defendant in Oates was tried for possession of heroin. The government introduced the worksheet of a United States Customs chemist who had analyzed heroin seized from the defendant's cohort. Plainly, the worksheet was adversarial, not ministerial. Unlike the Intoxilyzer certification, it was prepared for a specific criminal case against a specific defendant and was the result of a particular investigation.\\nThe state argues that the certificates of inspection are also admissible under OEC 803(8)(a). Because we have held that the certificates are admissible under OEC 803(8)(b), we need not decide whether they would have been admissible under any other exception to the hearsay rule.\"}"
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diff --git a/or/4381827.json b/or/4381827.json
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+"{\"id\": \"4381827\", \"name\": \"CHELSON et al, Appellants, v. The OREGONIAN PUBLISHING COMPANY et al, Respondents; HOWELL et al, Appellants, v. The OREGONIAN PUBLISHING COMPANY et al, Respondents\", \"name_abbreviation\": \"Chelson v. Oregonian Publishing Co.\", \"decision_date\": \"1985-01-16\", \"docket_number\": \"A8207-04628; CA A27883; A8205-03304; CA A27884\", \"first_page\": \"645\", \"last_page\": \"648\", \"citations\": \"71 Or. App. 645\", \"volume\": \"71\", \"reporter\": \"Oregon Reports, Court of Appeals\", \"court\": \"Oregon Court of Appeals\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T18:44:47.074569+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Warden, Presiding Judge, and Van Hoomissen and Young, Judges.\", \"parties\": \"CHELSON et al, Appellants, v. The OREGONIAN PUBLISHING COMPANY et al, Respondents. HOWELL et al, Appellants, v. The OREGONIAN PUBLISHING COMPANY et al, Respondents.\", \"head_matter\": \"On appellants\\u2019 reconsideration filed August 20, 1984,\\nof order of dismissal filed July 13, 1984,\\nreconsideration allowed, appeal reinstated; remanded with instructions to vacate summary judgment January 16, 1985\\nCHELSON et al, Appellants, v. The OREGONIAN PUBLISHING COMPANY et al, Respondents. HOWELL et al, Appellants, v. The OREGONIAN PUBLISHING COMPANY et al, Respondents.\\n([ AXXXX-XXXXX ]; CA A27883 (control))\\n([ AXXXX-XXXXX ]; CA A27884)\\n694 P2d 981\\nLeslie M. Roberts, Rex Armstrong, Timothy H. Fine, Henry A. Carey, P.C., and Kell, Alterman & Runstein, Portland, for the petition.\\nGeorge L. Wagner and Spears, Lubersky, Campbell, Bledsoe, Anderson & Young, Portland, contra.\\nBefore Warden, Presiding Judge, and Van Hoomissen and Young, Judges.\\nWARDEN, J.\", \"word_count\": \"628\", \"char_count\": \"3956\", \"text\": \"WARDEN, J.\\nPlaintiffs have petitioned for review of the order of this court dismissing their appeal from an ORCP 67B judgment in their consolidated cases. We consider the petition as one for reconsideration, ORAP 10.10, grant the petition, reinstate the appeal and remand.\\nPlaintiffs' second amended complaint contains 12 \\\"claims,\\\" stating separate legal theories, and a single prayer for relief. Defendants' motion for summary judgment was allowed as to all but the eighth \\\"claim,\\\" which alleged:\\n\\\"XLV.\\n\\\"Plaintiffs reallege paragraphs I through XIII and XVII through XXIV, inclusive, of this complaint.\\\"\\nParagraphs I through XIII were contained in the first claim; paragraphs XVII through XXIV were in the second.\\nPlaintiffs argue that May v. Josephine Memorial Hospital, 297 Or 525, 686 P2d 1015 (1984), decided after our order dismissing the appeal, requires its reversal, because the order granting summary judgment contained a finding that there was \\\"no just reason for delay in entry of final judgment\\\" and directed its entry, which is all that May says ORCP 67B requires. That, however, is not all that May says. If it were, there would be virtually no basis for appeals from summary judgments.\\nIn May the Supreme Court went on:\\n\\\"If the trial court's direction for entry of judgment is in error, i.e., if the order in a multiple claim or party action does not fully adjudicate a claim or all the interests of at least one party, then an appellate court should remand the case to the trial court with instructions to vacate the judgment, leaving in place the intermediate order that reflects the disposition of the prevailing party's motion. This order cannot be appealed until judgment is subsequently entered adjudicating the entire case.7 ORCP 67 B. does not grant the trial court power to make orders appealable that are truly intermediate, merely by designating them as judgment. In other words, this rule gives no discretion to the trial court to treat as final that which is only a partial adjudication of the interests of a party or an adjudication of fewer than all the grounds alleged in support of a single claim.\\n\\\"7 For example, an appellate court should remand to the trial court with instructions to vacate the judgment and enter the appropriate intermediate order if the trial court's judgment disposed only of an affirmative defense, rather than a claim for relief, or when all the acts alleged were so intertwined as to properly constitute one rather than multiple claims.\\\" 297 Or at 530.\\nThe second amended complaint clearly contains only a single claim for relief (stated in the prayer) on a number of different legal theories, and the acts alleged are \\\"so intertwined as to properly constitute one rather than multiple claims.\\\" The order granting summary judgment did not fully adjudicate plaintiffs' claim or all the interests of any party to the action and, therefore, we must remand the case to the trial court with instructions to vacate the judgment, leaving the order allowing the motion in place. May v. Josephine Memorial Hospital, supra.\\nPetition for reconsideration allowed; appeal reinstated; and remanded with instructions to vacate the summary judgment.\"}"
\ No newline at end of file
diff --git a/or/4381943.json b/or/4381943.json
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+"{\"id\": \"4381943\", \"name\": \"STATE OF OREGON, Respondent, v. MICHAEL JOSEPH PAGAN, Appellant\", \"name_abbreviation\": \"State v. Pagan\", \"decision_date\": \"1986-06-18\", \"docket_number\": \"10-83-03733; CA A35221\", \"first_page\": \"65\", \"last_page\": \"70\", \"citations\": \"80 Or. App. 65\", \"volume\": \"80\", \"reporter\": \"Oregon Reports, Court of Appeals\", \"court\": \"Oregon Court of Appeals\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T20:33:48.227338+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Richardson, Presiding Judge, and Warden and Newman, Judges.\", \"parties\": \"STATE OF OREGON, Respondent, v. MICHAEL JOSEPH PAGAN, Appellant.\", \"head_matter\": \"Argued and submitted October 22, 1985,\\naffirmed June 18,\\nreconsideration denied July 25, petition for review denied September 16, 1986 (301 Or 766)\\nSTATE OF OREGON, Respondent, v. MICHAEL JOSEPH PAGAN, Appellant.\\n(10-83-03733; CA A35221)\\n721 P2d 859\\nSally L. Avera, Salem, argued the cause for appellant. With her on the brief was Gary D. Babcock, Public Defender, Salem.\\nStephen E. A. Sanders, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Attorney General, and James E. Mountain, Jr., Solicitor General, Salem.\\nBefore Richardson, Presiding Judge, and Warden and Newman, Judges.\\nWARDEN, J.\", \"word_count\": \"1571\", \"char_count\": \"9166\", \"text\": \"WARDEN, J.\\nDefendant appeals his conviction for criminal mischief in the first degree. ORS 164.365. He represented himself in the trial. We affirm.\\nDefendant was arrested on April 4, 1983, after he broke a window at the Adult and Family Services Division office in Eugene. Public Defender Services of Lane County was appointed to represent him. Shortly after the appointment, the public defender filed a motion to withdraw as counsel. That motion was later withdrawn. On April 4, 1984, defendant appeared for trial represented by the third of three attorneys in the public defender's office to have represented him. The attorney stated that defendant was not happy with his legal representation and wanted him to withdraw. Defendant told the court that he had difficulties with counsel but did not want to go to trial unrepresented. The trial judge allowed the public defender to withdraw and appointed other counsel. Trial was continued.\\nOn December 4, 1984, the day before the second trial date, the last appointed attorney asked to withdraw but stated that he could give no reason without violating the attorney-client privilege. Defendant complained to the trial judge that the attorney had been unsympathetic and that he thought he should have the right to select his attorney. He told the court that he could not pay for an attorney and that he wanted to speak to the district attorney about a plea bargain. If a bargain were not possible, he would represent himself and would be willing to proceed to trial the following day. The trial judge allowed the attorney to withdraw. Later that afternoon defendant requested a postponement. The trial judge denied the request.\\nDefendant assigns as error that the trial judge did not appoint substitute counsel. He argues that, because he did not fire his attorneys but they instead withdrew, he automatically should have been provided with substitute counsel. Defendant has no right to substitute counsel in the absence of a legitimate complaint concerning the appointed counsel, see State v. Davidson, 252 Or 617, 620, 451 P2d 481 (1969), and ORS 135.050(5) gives a trial court discretion in determining when substitution should be made. The statute provides in part:\\n\\\"The court having jurisdiction of the case may substitute one appointed counsel for another at any stage in the proceedings when the interests of justice require such substitution.\\\" (Emphasis supplied.)\\nDefendant had no legitimate complaint about his attorney:\\n\\\"THE DEFENDANT: I just felt that, I don't know if I'm breaking any rule that he don't want to break, but I feel that he wasn't sympathetic on my part. I feel I have the right to select a jury, I should have the right to select an attorney. The man is going to defend me. Just as important, I feel. And in each case that I have been given an attorney, I haven't had the opportunity to speak to him until two days before the trial about how they're going to handle the matter. And seems that without putting any effort into it, I don't see \\u2014 they don't see my side of the story, they're not sympathetic about my feelings about the case. And so I don't \\u2014.\\\"\\nThe interests of justice did not require appointment of counsel for defendant. Defendant chose to proceed without an attorney, and the trial court did not abuse its discretion in requiring defendant to continue with that decision.\\nDefendant argues that the record does not show that he made the choice to proceed unrepresented. He argues there was no knowing waiver of the right to counsel and that the following exchange between him and the trial judge shows that he did not understand the situation and that he did not want to proceed unrepresented:\\n\\\"THE DEFENDANT: If I do defend myself, I will not relinquish my rights to an attorney?\\n\\\"THE COURT: You defend yourself because the court has ordered you to go to trial and you will have whatever rights that gives you.\\\"\\nWe agree that the record shows that, when the public defender withdrew, defendant, although dissatisfied with his counsel, did not want to go to trial without representation. Substitute counsel was provided at that time. We do not agree that defendant did not knowingly waive his right to representation at the time of the later withdrawal of substitute appointed counsel.\\nDefendant argues that, before allowing him to proceed pro se, the \\\"guidelines\\\" set forth in State v. Verna, 9 Or App 620, 626, 498 P2d 793 (1972), should have been followed:\\n\\\"At minimum, the court should determine whether defendant understands the nature of the charge, the elements of the offense and the punishments which may be exacted. Further informing him of some of the pitfalls of defending himself, the possible advantage that an attorney would provide, and the responsibility he incurs by undertaking his own defense will also serve to insure defendant's decision is made intelligently.\\\"\\nWe later stated in State v. Barnett, supra, 41 Or App at 803, that \\\"[w]e do not interpret [Verna], however, to require the trial court to conduct a catechism with defendant, analogous to Miranda warnings, in the absence of which a conviction must be reversed.\\\"\\nAlthough Verna was not followed strictly here, the record shows that defendant consented to the withdrawal of his attorney and made it clear that he would represent himself:\\n\\\"THE COURT: Let me ask you, Mr. Pagan, looked to me like in the file here you've had \\u2014 this is your second court-appointed lawyer. You got any money to hire a lawyer that you want?\\n\\\"THE DEFENDANT: No, I haven't. This is my fourth court-appointed attorney.\\n\\\"THE COURT: Fourth?\\n\\\"THE DEFENDANT: Yes. Although I would appreciate the opportunity of trying to reach a plea bargain with the District Attorney's office on my own before I do seek further legal assistance. And I believe I will wind up, if I don't reach a plea bargain, handling it myself. I feel I'm more competent than any of the attorneys I have spoken to about the matter, being as they're not sympathetic on my part.\\n\\\"THE COURT: Well, let me see if I understand you then, Mr. Pagan. Is what you'd like to do is to talk to the District Attorney and try and work out a plea bargain and then if you cannot reach a plea bargain, then you'd like to represent yourself?\\n\\\"THE DEFENDANT: Yes, I'd like to get this matter taken care of.\\n\\\"THE COURT: Mr. Pagan, if you got a chance to talk to the District Attorney sometime today and see if you can reach that agreement, if you are not, will you be ready to go to trial whatever day it is this week? You ready to proceed to trial?\\n\\\"THE DEFENDANT: Well, I would be willing to, sure. I would, as I say, I would like to get it over with as quickly as possible.\\\"\\nAfter discussions with the district attorney, defendant found that the state would not agree with him as to the disposition of his case, and he began to have doubts about his ability to proceed on his own. However, he does not argue that he did not understand the charge against him or the consequences which would result from a conviction.\\nThe right to counsel does not require a court to follow a defendant's changing whims. See State v. Barnett, supra, 41 Or App at 802. A defendant cannot be allowed to control the course of the prosecution against him. See State v. Lingren, 79 Or App 324, 719 P2d 61 (1986). The case against defendant was 20 months old and had already been postponed four times. He had been advised by four attorneys. He told the court that he thought himself more competent than any of them and waived his right to the assistance of counsel. The trial court did not err by not appointing still another counsel.\\nAffirmed.\\nDefendant does not assign as error the denial of the continuance but does make a comment that the failure to grant a continuance along with not appointing substitute counsel was an abuse of discretion. Granting or denying a continuance is within the sound discretion of the trial court and will not be disturbed in the absence of abuse. Defendant does not point to any prejudice that resulted from the refusal to grant a continuance. Given the length of time that the trial had been pending, that defendant had been prepared to go to trial on two dates with two separate attorneys and that he had consulted with four different attorneys, there was no abuse. See State v. Barnett, 41 Or App 797, 804, 598 P2d 1301, rev den 287 Or 641 (1979).\\nDefendant relies on ORS 135.045 and Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the federal constitution.\"}"
\ No newline at end of file
diff --git a/or/4382734.json b/or/4382734.json
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--- /dev/null
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@@ -0,0 +1 @@
+"{\"id\": \"4382734\", \"name\": \"1000 FRIENDS OF OREGON et al, Petitioners - Cross-Respondents, v. WASCO COUNTY COURT et al, Respondents, CITY OF RAJNEESHPURAM et al, Respondents - Cross-Petitioners\", \"name_abbreviation\": \"1000 Friends of Oregon v. Wasco County Court\", \"decision_date\": \"1986-08-06\", \"docket_number\": \"81-132; CA A39509\", \"first_page\": \"532\", \"last_page\": \"540\", \"citations\": \"80 Or. App. 532\", \"volume\": \"80\", \"reporter\": \"Oregon Reports, Court of Appeals\", \"court\": \"Oregon Court of Appeals\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T20:33:48.227338+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Warden, Presiding Judge, and Van Hoomissen and Young, Judges.\", \"parties\": \"1000 FRIENDS OF OREGON et al, Petitioners - Cross-Respondents, v. WASCO COUNTY COURT et al, Respondents, CITY OF RAJNEESHPURAM et al, Respondents - Cross-Petitioners.\", \"head_matter\": \"Argued and submitted May 14,\\nreversed and remanded on petition and cross-petition August 6,\\nreconsideration denied October 31, petition for review allowed November 25, 1986 (302 Or 299)\\n1000 FRIENDS OF OREGON et al, Petitioners - Cross-Respondents, v. WASCO COUNTY COURT et al, Respondents, CITY OF RAJNEESHPURAM et al, Respondents - Cross-Petitioners.\\n(81-132; CA A39509)\\n723 P2d 1034\\nKenneth M. Novack, Portland, argued the cause for petitioners - cross-respondents. With him on the brief were Ball, Janik and Novack, Mark J. Greenfield and Robert E. Stacey, Jr., Portland.\\nLeslie M. Roberts, Portland, argued the cause for respondents David Knapp, Richard Dennis Smith, Kent Bullick and Samadhi Matthews, and respondents - cross-petitioners City of Rajneeshpuram and Rajneesh Foundation International, formerly Chidvalis Rajneesh Meditation Center. With her on the brief were Sullivan, Josselson, Roberts, Johnson & Kloos and Rex Armstrong, Portland.\\nNo appearance for respondent Wasco County.\\nBefore Warden, Presiding Judge, and Van Hoomissen and Young, Judges.\\nWARDEN, P. J.\", \"word_count\": \"2777\", \"char_count\": \"17007\", \"text\": \"WARDEN, P. J.\\nPetitioners seek review of an order in which the Land Use Board of Appeals (LUBA) held that certain undisclosed business dealings between Wasco County Judge Richard Cantrell and those seeking to incorporate the City of Rajneeshpuram did not invalidate Cantrell's vote in favor of holding an election on a petition to incorporate the city. We reverse and remand.\\nThis case is a companion to 1000 Friends of Oregon v. Wasco County Court, 80 Or App 525, 723 P2d 1039 (1986) and involves a different portion of the same LUBA order. In 1000 Friends of Oregon v. Wasco County, 299 Or 344, 703 P2d 207 (1985) (Wasco County IV), the Supreme Court remanded the Rajneeshpuram incorporation issue to LUBA with instructions to consider \\\"[w]hether the Wasco County judge acted improperly, with prejudice of substantial rights, rendering the Wasco County Court order invalid.\\\" 299 Or at 376. Pursuant to the remand, LUBA permitted the parties to conduct discovery and then held an evidentiary hearing. On the basis of that evidence, LUBA found the following facts.\\nCantrell visited Rancho Rajneesh (the former Big Muddy Ranch) in August, 1981, together with other members of the Wasco and Jefferson County Courts. At that time representatives of the ranch \\u2014 who were also representatives of the petitioners for incorporation \\u2014 told Cantrell that they were interested in buying cattle. In early October, Cantrell and his wife dined at the ranch, and one of its leaders again raised the subject of buying cattle. Cantrell recommended that they buy \\\"hamburger grade\\\" cattle, which happened to be what he had for sale. He thereafter told the two Wasco County commissioners that he intended to sell cattle to the ranch, but he did not publicly disclose his dealings before the county court acted on the incorporation petition. He formally proposed to sell cattle to the ranch in a letter dated October 13, 1981, after the county court had rejected the original incorporation petition as legally deficient. On October 14, representatives of the proposed city presented a corrected petition.\\nRancho Rajneesh leaders were conscious of the effect Cantrell's sale of cattle might have on his vote on the incorporation petition. One of the leaders asked the ranch foreman to keep the sale low-key so as not to embarrass Cantrell. Ma Anand Sheela, one of the ranch leaders, told the foreman to pay Cantrell's asking price, because \\\"we needed him.\\\" On October 22, Cantrell and ranch officials reached an agreement on the sale. On November 4, the county court approved the incorporation election by a vote of two to one, Cantrell voting with the majority. On November 9, he delivered the cattle to the ranch's representatives.\\nLUBA found that Cantrell received more than the market price for the cattle, although it did not determine precisely how much more. It also found that the sale reflected an eager buyer, \\\"one who was less concerned with obtaining the best bargain than with meeting the requirements of the seller.\\\" Although the buyers may have believed that the sale would improve their chances of favorable treatment on the incorporation petition, there is no proof that the sale was expressly contingent on Cantrell's vote. Neither was the transaction so one-sided that it was a sham or suggests a payoff. Because there was no direct connection between the sale and Cantrell's vote, LUBA held that he was not biased in a way that would invalidate his vote or the county's action.\\nPetitioners, who opposed the incorporation of Rajneeshpuram at the county hearing on November 4, 1981, assert that LUBA erred in failing to hold that Cantrell's activities deprived them of their right to an impartial decision-maker at the hearing. We hold that the county's action was quasi-judicial, that petitioners were among those who had a due process right to an impartial decision-maker and that Cantrell's financial involvement with those seeking incorporation disqualified him from participating in the vote, at least in the absence of a full public disclosure of his dealings. We therefore hold that the county's action in setting a date for the incorporation election was invalid.\\nIn Fasano v. Washington Co. Comm, 264 Or 574, 507 P2d 23 (1973), overruled in part on other grounds, Neuberger v. City of Portland, 288 Or 585, 607 P2d 722 (1980), the Supreme Court held that a decision to change the zoning of a parcel of property was a quasi-judicial rather than a legislative act and that parties to the decision were entitled to various rights, including an impartial decision-maker. 264 Or at 588. Since Fasano the determination of which land use decisions are quasi-judicial has created some difficultly. Shortly after Fasano, we held that a county's action on an incorporation petition was legislative rather than quasi-judicial. Millersburg Dev. Corp. v. Mullen, 14 Or App 614, 621-624, 514 P2d 367 (1973). However, that holding has been superseded by more recent Supreme Court cases and is no longer controlling.\\nIn Strawberry Hill 4 Wheelers v. Benton Co. Bd. of Comm., 287 Or 591, 601 P2d 769 (1979), the court described a number of factors to consider in determining whether a county land use action is quasi-judicial. \\\"Generally, to characterize a process as an adjudication presupposes that the process is bound to result in a decision and that the decision is bound to apply preexisting criteria to concrete facts.\\\" 287 Or at 602. Other relevant factors are the importance of assuring that the decision is factually correct and that the decision-maker gives fair attention to affected individuals. The number of people affected and the size of the area covered are less important considerations. 287 Or at 603. That the decision-maker is applying the statewide planning goals to the decision is also an indication that its action is adjudicative. See Neuberger v. City of Portland, 288 Or 155, 165-166, 603 P2d 771 (1979), rehearing den 288 Or 507, 607 P2d 722 (1980). In this case, once the proponents presented the petition for an incorporation election, the process was bound to result in a decision. That decision had to be based in large part on preexisting criteria in the state incorporation statutes and the land use goals. Applying the goals necessarily involved extensive fact finding. A quasi-judicial process is best adapted to that function. We hold that the county's action on the incorporation petition was quasi-judicial.\\nWhen the Supreme Court held, in Fasano v. Washington Co. Comm., supra, that a quasi-judicial tribunal must be impartial, it did not state the basis for its holding. Since Fasano, we have recognized that its holding is based, at least in part, on the Due Process Clause of the Fourteenth Amendment. See, e.g. Tierney v. Duris, Pay Less Properties, 21 Or App 613, 628, 536 P2d 435 (1975). We therefore look to Fourteenth Amendment cases to determine petitioner's rights and Cantrell's responsibilities in this case. To be entitled to procedural due process under the Fourteenth Amendment \\u2014 and that is what petitioners seek in attacking Cantrell's participation in the decision \\u2014 one must have either a liberty or property interest at stake. Board of Regents v. Roth, 408 US 564, 571-572, 92 S Ct 2701, 33 L Ed 2d 548 (1972). Petitioners do not claim to have a liberty interest involved. Although they do not have a conventional property interest, the Fourteenth Amendment's protections are not limited to such interests alone. Rather, it protects \\\"the security of interests that a person has already acquired in certain benefits. These interests \\u2014 property interests- \\u2014 may take many forms.\\\" 408 US at 576. A person has a property interest in a benefit if the person has a legitimate claim of entitlement to it. The constitution is only infrequently the source of that legitimate claim; rather, it is usually found in other law \\u2014 often state law \\u2014 outside the constitution.\\nPetitioners' interest in the Rajneeshpuram incorporation issue is their interest in ensuring that the county comply with the state's land use laws. By statute, petitioners have standing to challenge the county's action if it violates those laws. Their interest is therefore one to which they have a legitimate claim of entitlement under state law. It is thus a property interest to which the Due Process Clause applies. See ORS 197.830(3); Jefferson Landfill Comm. v. Marion Co., 297 Or 280, 282 n 1, 284, 686 P2d 310 (1984). The legislature has given them the same rights in the local government process as those of a person with a conventional, Fasano property interest. Because petitioners have a property interest in a proper decision, they may assert that Cantrell's activities denied them the right to an impartial decision-maker. We turn to that issue.\\nThe crucial question is whether those activities, and Cantrell's failure to disclose them publicly, so tainted his role that the county's decision cannot stand. In Neuberger v. City of Portland, supra, 288 Or at 589, the Supreme Court held that the Portland City Council was not improperly influenced by a proposal by a developer to sell land to the city at the same time that it sought a zone change for other property. The developer first proposed the sale at an open hearing, and the mayor and staff members explained the status of the proposal at later hearings. There were no covert dealings, nor was any council member's personal interest involved. Neuberger is obviously distinguishable from this case. Further, United States Supreme Court opinions are controlling on Fourteenth Amendment due process, and we turn now to them.\\nA decision on the merits by an adjudicator with a personal interest in the outcome is a violation of due process. Ward v. Village of Monroeville, 409 US 57, 93 S Ct 80, 34 L Ed 2d 267 (1972); Turney v. Ohio, 273 US 510, 47 S Ct 437, 71 L Ed 749 (1927). That rule applies to administrative as well as judicial adjudications. Gibson v. Berryhill, 411 US 564, 578-579, 93 S Ct 1689, 36 L Ed 2d 488 (1973); see also Withrow v. Larkin, 421 US 35, 47, 95 S Ct 1456, 43 L Ed 2d 712 (1975). The case closest to this one on its facts is Commonwealth Corp. v. Casualty Co., 393 US 145, 89 S Ct 337, 21 L Ed 2d 301 (1968). Although it involved section 10 of the United States Arbitration Act, 9 USC \\u00a7 10, rather than the Due Process Clause of the Fourteenth Amendment, it is clear that the Supreme Court considered the standards to be the same; it relied primarily on Tumey v. Ohio, supra, a due process case, in reaching its decision.\\nIn Commonwealth Corp., the petitioner, a subcontractor, challenged an arbitration award on the ground that the prime contractor was a regular customer of the engineering consulting firm of one of the arbitrators. Although the prime contractor had not done business with the firm in question for about a year immediately before the arbitration, over a period of four or five years before the arbitration it had paid fees totalling $12,000, and the arbitrator had performed services on the projects involved in the arbitration. Although the prime contractor knew of the relationship, neither it nor the arbitrator disclosed it to the petitioner. In holding the arbitration void, the court emphasized the arbitrator's failure to disclose, which had prevented the petitioner, if it had so desired, from objecting to his serving. The lack of evidence of actual misconduct was irrelevant. \\\"[A]ny tribunal permitted by law to try cases and controversies not only must be unbiased but also must avoid even the appearance of bias.\\\" 393 US at 150.\\nCantrell should have disclosed his dealings with the ranch officials and, having failed to do so, was disqualified to sit on the petition for the incorporation election. Although we do not expect part-time local government officials \\u2014 nor do we expect part-time arbitrators \\u2014 to forego their normal business activities, when those activities include doing business with one of the parties who will be affected by a quasi-judicial decision, an official must disclose the business relationship to other affected parties. Because Cantrell did not take even that step, we need not decide whether he could have participated after disclosure if petitioners had objected. Under the circumstances, his participation made the county's action void. LUBA erred by holding otherwise.\\nReversed and remanded on petition and on cross-petition.\\nAs the Wasco County Judge, Cantrell had certain limited judicial functions. See ORS 5.010-5.030. However, the primary function of the county court is the conduct of county business. See ORS 203.111.\\nSeveral respondents cross-petition for review of the LUBA order, raising the same issues which they raised in 1000 Friends of Oregon v. Wasco County, supra. We reverse and remanded on the cross-petition for the reasons stated in that case.\\nSee 1000 Friends of Oregon v. Wasco County Court, supra, 80 Or App at 527, for a list of the previous appellate decisions concerning the incorporation of the City of Rajneeshpuram.\\nAll of the relevants fact are supported by substantial evidence. We need not consider petitioners' assignments attacking LUBA's findings as inadequate, because the facts which LUBA did find are sufficient for our decision. In a few instances LUBA improperly stated that substantial evidence supported certain findings rather than finding the facts in accordance with its view of the weight of the evidence. See ORS 197.830(11). That was only a mistake of terminology; it is clear from the order that LUBA in fact found in accordance with the evidence which it stated was substantial.\\nThe ranch is located in both counties, although the proposed city was only in Wasco County.\\nThe precise issue in Strawberry Hill 4 Wheelers was whether the county's action was reviewable by a writ of review. However, the criteria the court used in Strawberry Hill 4 Wheelers, to determine whether a land use decision is quasi-judicial and other criteria, which it suggested in that case might be helpful in other contexts, are appropriate guides for our determination in this case.\\nUnder ORS 197.835(8)(a)(B), LUBA may reverse for a procedural failure only if petitioners show prejudice to their substantial rights \\u2014 that is to their rights on the substantive issues involved. That the decision-maker was not impartial necessarily prejudices the rights of parties on the substance of the decision.\\nAlthough the parties discuss the law concerning ex parte contacts at some length, LUBA correctly recognized that such contacts are not an issue in this case. Ex parte contacts refer to extra-record discussions on facts in issue. There is no evidence that Cantrell and representatiaves of the ranch had such contacts. The issue, rather, is one of implied bias. In deciding it, we do not consider the suggestions in the record that ranch officials hoped that the cattle sale would make Cantrell favorably inclined to their position. LUBA did not find that Cantrell was aware of that hope or that he was influenced by it.\\nRespondents argue that the decision of the Oregon Government Ethics Commission not to pursue a complaint against Cantrell for violation of the Government Ethics Act collaterally estops petitioners from asserting that his dealings invalidated his vote. We disagree. Even if an Ethics Commission determination that an individual has not violated the Act could ever affect a judicial determination of the validity of the official's public acts, it did not do so here. A decision not to pursue a complaint is not a decision on the merits after a full evidentiary hearing and has no effect on collateral litigation. In addition, the Commission has jurisdiction under the Government Ethics Act, not under the requirements of Fourteenth Amendment Due Process on which we base our decision. See also ORS 244.390 (penalties provided in the Ethics Act are in addition to and not in lieu of other applicable penalties).\"}"
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+"{\"id\": \"4384973\", \"name\": \"In the Matter of the Compensation of Kiyoko R. Eastman, Claimant. EASTMAN, Petitioner, v. GEORGIA PACIFIC CORPORATION, Respondent\", \"name_abbreviation\": \"Eastman v. Georgia Pacific Corp.\", \"decision_date\": \"1986-06-04\", \"docket_number\": \"WCB 83-03678; CA A33954\", \"first_page\": \"610\", \"last_page\": \"613\", \"citations\": \"79 Or. App. 610\", \"volume\": \"79\", \"reporter\": \"Oregon Reports, Court of Appeals\", \"court\": \"Oregon Court of Appeals\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T17:09:31.664050+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Buttler, Presiding Judge, and Warren and Rossman, Judges.\", \"parties\": \"In the Matter of the Compensation of Kiyoko R. Eastman, Claimant. EASTMAN, Petitioner, v. GEORGIA PACIFIC CORPORATION, Respondent.\", \"head_matter\": \"Argued and submitted September 18,1985,\\naffirmed as to compensability, reversed as to termination of temporary total disability June 4,1986\\nIn the Matter of the Compensation of Kiyoko R. Eastman, Claimant. EASTMAN, Petitioner, v. GEORGIA PACIFIC CORPORATION, Respondent.\\n(WCB 83-03678; CA A33954)\\n719 P2d 1310\\nJames L. Edmunson, Eugene, argued the cause for petitioner. With him on the brief were Christopher D. Moore and Malagon & Associates, Eugene.\\nJohn M. Pitcher, Portland, argued the cause for respondent. With him on the brief was Roberts, Reinisch & Klor, P.C., Portland.\\nBefore Buttler, Presiding Judge, and Warren and Rossman, Judges.\\nBUTTLER, P. J.\", \"word_count\": \"716\", \"char_count\": \"4669\", \"text\": \"BUTTLER, P. J.\\nClaimant seeks review of a Workers' Compensation Board order reversing the referee and holding that claimant's shoulder and neck condition is not compensable and that employer was entitled to terminate temporary total disability payments for a compensable carpal tunnel syndrome.\\nClaimant, a 21-year-old millworker, suffered a compensable injury necessitating carpal tunnel surgery on both wrists, which was performed in late 1982 by Dr. Jewell. In February, 1983, claimant saw her family physician, Dr. Wichser, for shoulder and neck pain; he prescribed therapy and medication. Claimant sought compensation for that treatment, on the assumption that her shoulder and neck pain was secondary to the carpal tunnel syndrome. SAIF denied the claim. On de novo review, we agree with SAIF that the evidence is not sufficient to show that claimant's present disability is work related.\\nClaimant also contends that employer had no authority to terminate unilaterally the temporary total disability benefits that she had been receiving as a result of her compensable carpal tunnel syndrome. In a form letter, employer sought Jewell's release of claimant for jobs that it characterized as light duty. On April 4, 1983, Jewell released claimant to light duty, with no repetitive hand motions. Claimant did not report for work, because, in her opinion, as she later testified at hearing, \\\"there is no light duty work there.\\\" On April 6,1983, employer wrote a letter to claimant advising:\\n\\\"We do have light duty work available and since your physician has released you to light duty work, compensation benefits will cease as of April 4,1983.\\\"\\nClaimant did not respond, and benefits were terminated as of April 4, 1983.\\nFormer OAR 436-54-222(6), authorizing the termination of temporary total disability benefits before claim closure, provided:\\n\\\"An insurer or self-insured employer shall cease paying temporary total disability compensation and start making payment of such temporary partial disability compensation as would be due in subsection (1) when an injured worker refuses wage earning employment prior to claim determination under the following conditions:\\n\\\"(a) The attending physician has been provided with a written description of the job duties and the physical requirements thereof;\\n\\\"(b) The attending physician agrees that the injured worker is capable of performing the employment offered as it is described; and\\n\\\"(c) The employer has provided the injured worker with a written offer of reasonable employment which states the beginning time, date and place; the duration of the job; the wage rate payable; an accurate description of the job duties and that the attending physician has said the worker is capable of performing the employment.\\\"\\nEmployer attempts to justify its termination of claimant's benefits under that rule, claiming that it substantially complied with the procedural requirements, or, in the alternative, that compliance would have been futile because claimant had already decided not to work. The referee reversed the termination of benefits, finding that employer had not satisfied the procedural requirements of sub-paragraph (6). The Board reversed. We agree with the referee, because the rule is clear, unambiguous and specific in what is required before an employer may terminate unilaterally temporary total disability payments. Those requirements were not met here. Claimant was never given a written offer of employment that accurately described the jobs available. She was never advised of the beginning time or date or the duration of the job. Having failed to comply with the rule's requirements, employer had no authority to terminate benefits, even if claimant had already decided that she would accept no job which was offered to her.\\nAffirmed as to compensability; reversed as to termination of temporary total disability.\\nOAR 436-54-222 was renumbered to OAR 436-60-030 on May 1, 1985, and amended on December 12,1985; it remains the same in substance.\"}"
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+"{\"id\": \"4390077\", \"name\": \"STATE OF OREGON, Respondent, v. ANTHONY RODRIGUES GARCIA, Appellant\", \"name_abbreviation\": \"State v. Garcia\", \"decision_date\": \"1985-08-07\", \"docket_number\": \"81-1519-C, 81-1520-C, 81-1521-C, 81-1524-C, 81-1525-C, 81-1526-C; CA A30355\", \"first_page\": \"649\", \"last_page\": \"655\", \"citations\": \"74 Or. App. 649\", \"volume\": \"74\", \"reporter\": \"Oregon Reports, Court of Appeals\", \"court\": \"Oregon Court of Appeals\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T19:04:57.516685+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Buttler, Presiding Judge, and Warren and Rossman, Judges.\", \"parties\": \"STATE OF OREGON, Respondent, v. ANTHONY RODRIGUES GARCIA, Appellant.\", \"head_matter\": \"Argued and submitted June 20, 1094,\\naffirmed August 7,\\nreconsideration denied September 27,\\npetition for review denied October 22, 1985 (300 Or 180)\\nSTATE OF OREGON, Respondent, v. ANTHONY RODRIGUES GARCIA, Appellant.\\n(81-1519-C, 81-1520-C, 81-1521-C, 81-1524-C, 81-1525-C, 81-1526-C; CA A30355)\\n(Cases Consolidated)\\n704 P2d 544\\nShaun S. McCrea, Eugene, argued the cause for appellant. On the brief was Robert J. McCrea.\\nStephen F. Peifer, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Attorney General, and James E. Mountain, Jr., Solicitor General, Salem.\\nBefore Buttler, Presiding Judge, and Warren and Rossman, Judges.\\nBUTTLER, P. J.\", \"word_count\": \"2092\", \"char_count\": \"12663\", \"text\": \"BUTTLER, P. J.\\nDefendant was convicted on six counts of first degree robbery. His first trial, which included a charge of conspiracy, had resulted in his acquittal for conspiracy and a mistrial by reason of a hung jury on the robbery counts. The directed acquittal on the conspiracy charge was based on improper venue. On appeal, he contends that that acquittal for criminal conspiracy bars his reprosecution for robbery, because the only evidence connecting him to the robbery is the same as that which was used to prove the conspiracy. We affirm.\\nOn November 22, 1980, several participants in a poker game in Josephine County were robbed by two masked men, one of whom was armed with a shotgun. There was testimony, including that of the robbers, who had been granted immunity, from which a jury could have found that defendant agreed with the robbers to participate in the crime. In return for a share of the proceeds, defendant agreed to purchase a shotgun for use in the robbery and to attend the poker game so that he could let the robbers in through a door that normally was chained shut. He did, in fact, purchase a shotgun the night before the robbery and, although the shotgun was not found, witnesses identified the one used in the robbery as similar in appearance to a catalog picture of the one purchased by defendant.\\nAlthough defendant attended the poker game, the robbers gained access when an innocent bystander opened the door. Defendant did not let the robbers in or take any part in the robbery itself; however, there is evidence that he shared in the proceeds of the robbery. The evidence shows that every act of defendant on which the state relies \\u2014 the agreement, the purchase of the shotgun and the sharing \\u2014 occurred outside of Josephine County, except his presence at the time of the robbery.\\nAt the first trial, defendant's motion for judgment of acquittal was granted expressly on the ground that \\\"venue on Count II was improperly laid to charge of conspiracy in Josephine County .\\\" The jury was unable to reach a verdict on the robbery counts, resulting in a mistrial. At the retrial on the robbery counts, defendant moved to dismiss on former jeopardy grounds, contending that his acquittal for conspiracy barred a retrial for robbery. The motion was denied, and he was convicted on an accomplice theory. He contends on appeal, first, that his retrial was barred on former jeopardy grounds and, second, that evidence of the conspiratorial agreement should not have been admitted, because he had been acquitted of the conspiracy.\\nThe heart of defendant's argument is that, because he had been acquitted of conspiracy to commit robbery, he could not be tried thereafter for the substantive offense to which the conspiracy related if, as here, the only evidence on which the state relies is the conspiracy. To some extent, the argument appears to be one of semantics, because the inchoate crime of conspiracy involves an agreement between the defendant and one or more persons to engage in or cause the performance of conduct constituting certain crimes, including robbery, ORS 161.450; whereas a defendant may be criminally liable for the acts of another if he agrees to aid or abet that other in planning or committing the crime. ORS 161.155(1)(b). However, according to the legislative commentary to ORS 161.155, from a technical standpoint conspiracy per se is not a ground for accomplice liability.\\nIf there is a problem here, it is because the state, from the outset of the robbery retrial and over defendant's objection, insisted that it was entitled to prove the conspiracy qua conspiracy in order to establish defendant's liability as an accomplice. The trial court agreed. That posture of the case might have made a difference in the admissibility of the testimony of key witnesses because of the need for corroboration if they were treated as accomplices rather than as co-conspirators. Defendant assigns no error on that ground, however; his second assignment of error is that the court erred in admitting any evidence to prove a conspiracy and in permitting the use of that term by the state.\\nIn the context in which that assignment is presented, we believe that the argument is only one of semantics. In order to establish accomplice liability, as distinct from a conspiracy, it is necessary to show that the crime to which the agreement related was committed. That was done here. To require the state to prove, as defendant seems to contend, that he actually participated in the robbery would destroy the concept of accomplice liability and nullify the plain meaning of the statute. Furthermore, there was evidence that defendant went beyond agreeing to aid and abet, because he concedes that he purchased a shotgun on the night before the robbery, and there was testimony that he shared in the spoils.\\nDefendant also argues that the jury was confused by the interchangeable use of \\\"agreement\\\" and \\\"conspiracy\\\" by the state, so that it may have convicted him of conspiracy rather than robbery. Assuming that the jury was properly instructed, and there is no contention that it was not, we fail to see how the jury could have convicted defendant of conspiracy. Not only did the state prove that the robbery had taken place, an element not necessary to prove a conspiracy, it also proved at least one overt act by defendant in furtherance of the alleged agreement. Accordingly, the second assignment presents no reversible error.\\nWe turn now to defendant's principal claim \\u2014 that his retrial for robbery was barred by former jeopardy, because he had been acquitted of the conspiracy charge, which involved the same facts \\u2014 an agreement to commit the robbery. He relies on the Oregon Constitution, Article I, section 12, and the Fifth Amendment to the United States Constitution and Oregon statutory former jeopardy provisions. ORS 131.505 to 131.535.\\nTaking the statutory claim first, ORS 131.515 bars separate prosecutions for offenses based on the same criminal episode under certain circumstances, as well as a second prosecution for the same offense. Here the state has made no attempt to prosecute defendant separately for conspiracy and robbery, which would be prohibited by ORS 131.515(2) if venue on both charges had been in Josephine County. All charges were joined in a single prosecution, improperly as it turned out, and the retrial resulting from the hung jury does not constitute a separate prosecution on related charges, but a permissible reprosecution on one of the charges. ORS 131.525(1)(b)(D). Even if defendant's acquittal on the conspiracy charge bars the state from recharging him on that charge in the proper county, it does not make the retrial on the robbery counts an impermissible separate prosecution under that statute. If the state had withdrawn its conspiracy indictment before jeopardy attached at the first trial, it could still have retried defendant on robbery charges after the mistrial. ORS 131.525(1) (b)(D). Similarly, the state could have charged defendant with both conspiracy and robbery in Jackson County. However, defendant could not be convicted and punished for both the criminal conspiracy and the completed robbery. ORS 161.485(3).\\nAlthough defendant's retrial is permitted by ORS 131.525(l)(b)(D), it is possible that application of the statute here may violate the policies underlying the statutory amplification of the former jeopardy idea. Those policies forbid prosecution solely for the purpose of conducting a \\\"dry run\\\" or for the purpose of harassing and wearing down a defendant. See, e.g., State v. Brown, 262 Or 442, 448-49, 497 P2d 1191 (1972). To claim, as defendant does, that the improper joinder of the conspiracy charge was an intentional dry run for the second robbery prosecution is to ignore the fact that the state attempted to gain a robbery conviction in the first trial and failed only because of a hung jury. The fact that both parties had two chances to see and hear all of the witnesses stems from the hung jury, not from the improper venue. The retrial would have occurred even if defendant had not been charged with criminal conspiracy.\\nThe question remains whether defendant's acquittal of conspiracy prohibits the state, on constitutional former jeopardy grounds, from relying on the conspiratorial agreement to establish defendant's accomplice liability in the robbery retrial. Defendant contends that the effect of the acquittal, even though the judgment expressly states that it is based on improper venue, is the same as a jury verdict of acquittal and, therefore, not only bars reprosecution for conspiracy in the proper county, but also another attempt to prove the agreement in the robbery prosecution. We conclude that the acquittal here is the same as, or at least closely analogous to, one that is grounded on a variance between the accusatory instrument and the proof, in which case the acquittal does not bar reprosecution. ORS 131.535(1); State v. Jones, 240 Or 546, 402 P2d 738 (1965). The constitutionality of the statute is not challenged; in fact, it is not mentioned.\\nEven if that statute did not control, the judgment of acquittal, on its face, is limited to deciding the question of venue. Although defendant does not refer to collateral estoppel, his argument is that the facts involved in the conspiracy may not be relitigated in the robbery retrial, because they had been resolved in his favor by the acquittal. The doctrine of collateral estoppel in criminal cases is related, but not identical, to former jeopardy. Ashe v. Swenson, 397 US 436, 90 S Ct 1189, 25 L Ed 2d 469 (1970); State v. George, 253 Or 458, 466, 455 P2d 609 (1969); State v. Sprague, 25 Or App 621, 626, 550 P2d 769 (1976). It bars proof of any fact or issue necessarily decided by a previous verdict. ORS 43.160; Ashe v. Swenson, supra; State v. Mozorosky, 277 Or 493, 561 P2d 588 (1977); State v. George, supra. Here, the acquittal of conspiracy decided only that the state had failed to prove venue in Josephine County. There was no error in denying defendant's motion.\\nAffirmed.\\nWe state the facts surrounding the robbery and the agreement in the light most favorable to the state.\\nTwo other matters to which defendant alludes are not assigned as error. He claims that the trial court should have excluded co-conspirator hearsay evidence, because it was uncorroborated. No ruling is assigned as error, and we decline to consider the issue. State v. Mendenhall, 53 Or App 174, 176, 631 P2d 791 (1981). In any case, defendant conceded that he purchased a shotgun on the night of the robbery, which, along with eyewitness testimony about the appearance of the robbery weapon, would provide independent corroboration for the testimony that there was an agreement.\\nDefendant's argument that he had no notice that the robbery charge would be based on accomplice liability is without merit. There is no contention that he was denied pretrial discovery, and it is clear that the state may obtain a conviction on an accomplice theory after charging a defendant as a principal. ORS 161.155; State v. Steeves, 29 Or 85, 90-91, 43 P 947 (1896). In any event, because of the first trial, defendant was clearly on notice of the state's theory at the second trial.\\nVenue for both conspiracy and \\\"accomplice robbery\\\" would have been proper in the county where the agreement took place. ORS 131.315(7),(9),(10); 161.155.\\nThe conspiracy indictment alleged that the acts took place in Josephine County.\\nORS 131.535(1) provides:\\n\\\"The following proceedings will not constitute an acquittal of the same offense:\\n\\\"(1) If the defendant was formerly acquitted on the ground of a variance between the accusatory instrument and the proof .\\\"\\nORS 43.160 provides:\\n\\\"That only is determined by a former judgment, decree or order which appears upon its face to have been so determined or which was actually and necessarily included therein or necessary thereto.\\\"\"}"
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+"{\"id\": \"4395123\", \"name\": \"JIM JARVIS-JIM BEAMER, INC., Respondent, v. BLACK BEAR RESORT, INC. et al, Appellants; BLACK BEAR RESORT, INC., Third-Party Plaintiff - Appellant, v. JIM JARVIS-JIM BEAMER, INC. et al, Third-Party Defendants - Respondents\", \"name_abbreviation\": \"Jim Jarvis-Jim Beamer, Inc. v. Black Bear Resort, Inc.\", \"decision_date\": \"1987-04-22\", \"docket_number\": \"32508; CA A37188\", \"first_page\": \"51\", \"last_page\": \"57\", \"citations\": \"85 Or. App. 51\", \"volume\": \"85\", \"reporter\": \"Oregon Reports, Court of Appeals\", \"court\": \"Oregon Court of Appeals\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T23:57:38.430271+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Buttler, Presiding Judge, and Warren and Rossman, Judges.\", \"parties\": \"JIM JARVIS-JIM BEAMER, INC., Respondent, v. BLACK BEAR RESORT, INC. et al, Appellants, BLACK BEAR RESORT, INC., Third-Party Plaintiff - Appellant, v. JIM JARVIS-JIM BEAMER, INC. et al, Third-Party Defendants - Respondents.\", \"head_matter\": \"Argued and submitted November 12, 1986,\\naffirmed April 22,\\nreconsideration denied July 2,\\npetition for review denied July 28, 1987 (303 Or 699)\\nJIM JARVIS-JIM BEAMER, INC., Respondent, v. BLACK BEAR RESORT, INC. et al, Appellants, BLACK BEAR RESORT, INC., Third-Party Plaintiff - Appellant, v. JIM JARVIS-JIM BEAMER, INC. et al, Third-Party Defendants - Respondents.\\n(32508; CA A37188)\\n735 P2d 1240\\nWilliam D. Bailey, Portland, argued the cause and filed the briefs for appellants.\\nLevi J. Smith, Portland, argued the cause and filed the brief for respondents.\\nBefore Buttler, Presiding Judge, and Warren and Rossman, Judges.\\nBUTTLER, P. J.\", \"word_count\": \"1901\", \"char_count\": \"11851\", \"text\": \"BUTTLER, P. J.\\nDefendants appeal from a judgment entered on a jury verdict for plaintiff, awarding damages for breach of contract for the marketing of timeshares in a resort located at Sunriver. The only assigned error that requires extended discussion is that the trial court erred in denying defendants' motions for directed verdict, which were made on the ground that plaintiff was not a licensed real estate organization when the alleged cause of action arose. We affirm.\\nJim Beamer was approached by representatives of Black Bear in May and June, 1981, for the purpose of working out an arrangement for the marketing of timeshares in Black Bear resort. At that time, Beamer was a licensed real estate broker. He contacted Jarvis, his long time acquaintance, who had been engaged in real estate activity for about seven years, and hired him to assist in promoting the sale of the timeshares, if an agreement could be accomplished. Although the record is not clear as to when Jim Jarvis-Jim Beamer, Inc., was formed, it appears to have been before December 24,1981, because on that date Beamer applied to the Real Estate Division to transfer his license to that corporation.\\nThe parties entered into a letter of intent dated December 30,1981, which stated that Beamer and Jarvis were \\\"doing business as an Oregon corporation, Jim Jarvis-Jim Beamer, Inc.\\\" and that they desired \\\"to organize a company for the marketing and sales of the timeshare units by qualified real estate salespersons.\\\" Each of them signed the letter of intent under the caption \\\"Jarvis & Beamer.\\\" Dwain Quandt and Ron Sears signed for Q&S Properties (Q&S), which was to be the owner of Black Bear Resort, a non-profit corporation yet to be organized.\\nIt is apparent from the letter that the parties contemplated that a definitive agreement would be executed after certain preliminary matters were accomplished and some of the details of the timeshare arrangements were settled. Yet the parties set forth in that 10-page document what each party undertook to do to accomplish marketing the interests. Jarvis and Beamer committed themselves or their corporation to spending a minimum of $100,000 to market the initial block of timeshares; they or their corporation were to be the exclusive sales agent for Black Bear, receiving a 30 percent commission on all timeshare sales, and agreed not to sell timeshare interests for any other developer. Q&S agreed to cause its nonprofit corporation to construct eight homes and accompanying recreational facilities for the first phase of the project and to make every effort to construct a total of 46 units in seven phases. Q&S also agreed to arrange for financing on specific terms. The agreement of the parties was subject to \\\"final documentation and necessary governmental agency approval for the marketing\\\" of the timeshares.\\nEarly in 1982, apparently after plaintiff was organized, Beamer and Jarvis began working full time in preparation for marketing the timeshares. They established an office at Sunriver, hired a secretary and a sales staff, purchased office equipment and began working with advertising agencies to develop a marketing campaign. At some point, Beamer began promoting timeshare sales at Sunriver and at various sporting events around the state, although no actual sales could be made until the state had given its approval. On April 6, Beamer's application to transfer his license to plaintiff and to become its designated broker, ORS 696.025(3), was approved.\\nOn May 6, 1982, the Real Estate Division approved the plan to sell the timeshares to the public. On the following day, the definitive agreement contemplated by the letter of intent, and denominated a marketing agreement, was executed between Black Bear Resort and Q&S on the one hand and plaintiff on the other. Performance of the agreement was personally guaranteed by the four persons who had signed the letter of intent. The marketing agreement elaborated on the principles initially set out in the letter of intent and contained significant differences; it provided that it superseded the earlier document. Shortly after that agreement was signed, disputes arose between the parties, and on July 2,1982, defendants terminated it.\\nPlaintiff then commenced this action for breach of the marketing agreement. The complaint sought to recover money spent \\\"in anticipation and reliance upon the execution of the contract,\\\" as well as profits from commissions that would have been earned had the agreement been fulfilled. The jury found no lost profits but awarded plaintiff the amount of money that it had spent \\\"in performance of its obligations on the contract.\\\" On appeal, defendants contend that the trial court erred in denying their motions for directed verdict. We view the evidence in the light most favorable to the party opposing the motions. Brown v. J.C. Penney Co., supra n 1; Jacobs v. Tidewater Barge Lines, 277 Or 809, 811, 562 P2d 545 (1977).\\nDefendants based their motions on ORS 696.710(1):\\n\\\"No person engaged in the business of, or acting in the capacity of, a real estate broker or appraiser within this state shall bring or maintain any action in the courts for the collection of compensation without alleging and proving that the person was a duly licensed real estate broker or appraiser at the time the alleged cause of action arose.\\\"\\nTheir principal argument is that plaintiffs real estate activities commenced when the letter of intent was signed, at which time it was not licensed. That argument is premised on defendants' contention that plaintiff signed the letter of intent, which is not the case, as we have pointed out.\\nTheir fallback position is that, because plaintiff was not licensed until April 6,1982, it is prohibited by the statute from suing to recover damages incurred before it became licensed. They did not point out to the trial court exactly what expenditures were made before that date or the amounts expended or distinguish between those that were \\\"real estate activities\\\" and those that were not. Here, they argue that approximately $109,000 of the expenditures were made before the marketing agreement was signed on May 7, 1982. However, plaintiff was licensed no later than April 6, 1982. Although some of plaintiffs preliminary activities for which recovery is sought come within the definition of \\\"professional real estate activity,\\\" ORS 696.010(10), not all of them do. For example, opening an office, hiring personnel and purchasing equipment do not. Beamer, as a licensed broker, could have lawfully engaged in promotional activity.\\nFurthermore, the statute only prohibits actions \\\"for the collection of compensation,\\\" defined by ORS 696.010(6):\\n\\\" 'Compensation' means any fee, commission, salary, money or valuable consideration for services rendered or to be rendered as well as the promise thereof and whether contingent or otherwise.\\\"\\nExpenditures relating to the opening of an office do not come within that definition. However, because plaintiffs complaint seeks money for lost commissions, as well as money spent in anticipation of and in reliance on the execution of the marketing agreement, part of its claim is for \\\"compensation.\\\" Therefore, plaintiff was required by ORS 696.710(1) to allege that it was licensed at the time the cause of action arose. It did so by amendment at the close of its case, and no error is assigned to the court's permitting the amendment.\\nDefendants, nevertheless, contend that plaintiff must have been licensed throughout the time during which compensation is claimed or, as stated in Hunter v. Cunning, 176 Or 250, 290, 154 P2d 562, 157 P2d 510 (1944), \\\"the whole period covered by the rendition of the broker's services.\\\" Although that is a correct proposition, defendants' motion for directed verdict was premised on the erroneous assumption that plaintiff had signed the letter of intent. Therefore, denial of that motion was not error. In the alternative, they moved to strike any evidence relating to any money that was spent before April 6, when plaintiff became licensed, without specifying what expenditures, or what amounts, were made before that date and moved to dismiss \\\"that part of the case.\\\" More specificity is required. ORCP 60. Because some of those preliminary expenditures were not \\\"real estate activities\\\" or \\\"compensation\\\" within the statutory definitions, there was no error in denying the alternative motion.\\nAffirmed.\\nDefendants also assign error to the trial court's denial of their motions for directed verdict and judgment n.o.v. based on their allegation that plaintiff breached its fiduciary duty to defendants. Any fiduciary duty that plaintiff owed to defendants was the result of the marketing agreement and related dealings between the parties. The dispute over who breached the agreement was a question of fact that was properly submitted to the jury. Because the jury decided in favor of plaintiff, we cannot set the verdict aside unless there is no evidence from which the jury could have found the facts necessary to establish plaintiffs claim. Brown v. J. C. Penney Co., 297 Or 695, 705, 688 P2d 811 (1984). There was evidence to support the jury's verdict.\\nIt is not clear whether Jarvis was licensed; however, defendants make nothing of that lack of clarity.\\nORS 696.025(3) provides:\\n\\\"The commissioner may issue a real estate license to a real estate licensee in any one of the following categories, which authorizes the licensee to perform only the duties described for that category:\\n\\n\\\"(3) Designated real estate broker, which authorizes such person or persons to engage in professional real estate activity directly with others, but limited to activity in the name of a real estate organization designating such person to be a designated real estate broker, and not otherwise.\\\"\\nORS 696.010(10), so far as relevant, provides:\\n\\\"As used in ORS 696.010 to 696.490 and 696.710 to 696.730, unless the context requires otherwise:\\n<< s(: sfc * s}c *\\n\\\"(10) 'Professional real estate activity' means any of the following actions, when engaged in for another and for compensation or with the intention or in the expectation or upon the promise of receiving or collecting compensation, by any person who:\\n<<$ Jfc % $ s(:\\n\\\"(b) Offers to sell, exchange, purchase, rent or lease real estate.\\n\\\"(c) Negotiates, offers, attempts or agrees to negotiate the sale, exchange, purchase, rental or leasing of real estate.\\n\\n\\\"(j) Assists or directs in the procuring of prospects, calculated to result in the sale, exchange, leasing or rental of real estate.\\n<<\\n\\\"(m) Except as otherwise provided in ORS 696.030(l)(k), advises, counsels, consults or analyzes in connection with real estate values, sales or dispositions, including dispositions through eminent domain procedures.\\\"\\nThere is no dispute but that the definition of \\\"real estate\\\" includes the timeshares that plaintiff intended to sell, ORS 696.010(11), or that plaintiff, at some point, was \\\"acting in the capacity of a real estate broker.\\\"\\nOregon now has a statutory scheme that regulates the timeshare industry specifically. ORS 94.813 to ORS 94.945 became effective July 28,1983. Or Laws 1983, ch 530, \\u00a755.\"}"
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+"{\"id\": \"4397172\", \"name\": \"WILSON, dba Wilson Chiropractic Clinic, P. C. Petitioner, v. WORKERS' COMPENSATION DEPARTMENT, Respondent\", \"name_abbreviation\": \"Wilson v. Workers' Compensation Department\", \"decision_date\": \"1987-06-24\", \"docket_number\": \"2-1986; CA A40561\", \"first_page\": \"207\", \"last_page\": \"210\", \"citations\": \"86 Or. App. 207\", \"volume\": \"86\", \"reporter\": \"Oregon Reports, Court of Appeals\", \"court\": \"Oregon Court of Appeals\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-11T01:58:38.095756+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Richardson, Presiding Judge, and Newman and Deits, Judges.\", \"parties\": \"WILSON, dba Wilson Chiropractic Clinic, P. C. Petitioner, v. WORKERS\\u2019 COMPENSATION DEPARTMENT, Respondent.\", \"head_matter\": \"Argued and submitted February 18,\\nrule held valid June 24,\\nreconsideration denied August 21, petition for review denied October 6, 1987 (304 Or 240)\\nWILSON, dba Wilson Chiropractic Clinic, P. C. Petitioner, v. WORKERS\\u2019 COMPENSATION DEPARTMENT, Respondent.\\n(2-1986; CA A40561)\\n738 P2d 1001\\nBrian R. Whitehead, Salem, argued the cause and filed the brief for petitioner.\\nRichard D. Wasserman, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent. With him on the brief were Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem.\\nPeter W. McSwain, and Francesconi & Cash, P.C., Portland, filed a brief amicus curiae for Oregon Chiropractic Physicians Assn.\\nBefore Richardson, Presiding Judge, and Newman and Deits, Judges.\\nDEITS, J.\", \"word_count\": \"861\", \"char_count\": \"5587\", \"text\": \"DEITS, J.\\nPetitioner challenges the validity of a fee schedule adopted as an administrative rule by the Workers' Compensation Department. The schedule allows licensed physical therapists to be paid a greater maximum fee than other health professionals, such as chiropractors and osteopaths, are paid for the same services. We hold that the rule is valid.\\nPetitioner contends that the adoption of the fee schedule exceeded the authority granted the director by ORS 656.2480):\\n\\\"The director, in compliance with ORS 183.310 to 183.550 and 656.794, shall promulgate rules for medical fee schedules. These schedules shall represent the 75th percentile of usual and customary fees as determined by the director who shall determine those fees on the basis of generally accepted descriptions of medical service.\\\"\\nPetitioner argues that his position is supported not only by the language of the statute but by the legislative history as well.\\nWe conclude that adoption of the rule was within the director's authority. First, the plain language of the statute allows the director to establish schedules. Petitioner argues that the requirement in the statute that fees be based on \\\"generally accepted descriptions of medical service\\\" limits the director's authority, because there are no generally accepted descriptions which differentiate between types of medical providers. However, that requirement in the statute has no relevance to the director's authority to adopt fee schedules. \\\"Generally accepted descriptions\\\" refers to physicians' Current Procedural Terminology (CPT), an American Medical Association established code which uniformly describes procedures or services but without reference to the profession of the provider. The use of the CPT does nothing to limit the number of fee schedules the director may adopt, but rather insures that providers and insurers use the same terminology in their billing process.\\nPetitioner also argues that the legislative history supports an interpretation of ORS 656.248(1) limiting the director's authority, because language that formerly expressly gave the director the authority to adopt more than one schedule was removed from the statute. Petitioner's reliance on the legislative history is in error. We agree with respondent that the history of ORS 656.248(1) shows a legislative intent that the director be permitted to adopt fee schedules which establish different fees for different professions. The 1971 version of ORS 656.248(1) allowed payment for medical services to be the \\\"usual fee charged by a vendor for similar service.\\\" Petitioner concedes that, under that version of the statute, fees could differ on the basis of the profession of the provider. In 1981, as part of the revision of the Workers' Compensation law, the legislature eliminated the reference to vendors' usual fees. However, the elimination of that reference does not prevent the director from differentiating among providers in establishing fees. The legislature permitted the continuation of the distinction by authorizing rules for medical fee schedules. The 1985 amendments did not change the director's authority to promulgate schedules.\\nPetitioner's last challenge is that the schedules violate Article I, section 20, of the Oregon Constitution and the federal Equal Protection Clause. Under either the state analysis, see Cooper v. OSAA, 52 Or App 425, 629 P2d 386, rev den 291 Or 504 (1981), or the federal rational relationship test, the contention is without merit.\\nRule held valid.\\nPetitioner also challenges the rule as a violation of ORS 656.248(4), which provides:\\n\\\"If no usual and customary fee has been established for a given service or procedure the director may, in compliance with ORS 183.310 to 183.550 and 656.794, promulgate a reasonable rate, which shall be the same within any given area for all primary health care providers to be paid for that service or procedure.\\\" (1985 amendment emphasized.)\\nThe subsection is not applicable, because physical therapists are not primary providers. Amicus so concedes. Physical therapists can perform therapy only upon referral. ORS 688.130.\\nCPT is a system by which procedures or services are identified by a five digit code. To each CPT the director has assigned a relative value which is to be multiplied by a conversion factor. The difference in fees comes from the assigned relative values, not from variations in use of the code.\\nThe version of ORS 656.248 adopted in 1981 provided, in part:\\n\\\"(1) The director, in compliance with ORS 183.310 to 183.550 and 656.794, shall promulgate rules for medical fee schedules and shall update such schedules on a periodic basis. In promulgating such rules the director shall consider:\\n\\\"(a) Medical service coding;\\n\\\"(b) Usual and customary medical service fees[.]\\\"\"}"
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+"{\"id\": \"4407583\", \"name\": \"HEATHMAN, Appellant, v. HEATHMAN, Respondent\", \"name_abbreviation\": \"Heathman v. Heathman\", \"decision_date\": \"1990-03-14\", \"docket_number\": \"A8812-07108; CA A60454\", \"first_page\": \"681\", \"last_page\": \"684\", \"citations\": \"100 Or. App. 681\", \"volume\": \"100\", \"reporter\": \"Oregon Reports, Court of Appeals\", \"court\": \"Oregon Court of Appeals\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-11T01:58:42.569458+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Buttler, Presiding Judge, and Warren and Rossman, Judges.\", \"parties\": \"HEATHMAN, Appellant, v. HEATHMAN, Respondent.\", \"head_matter\": \"Argued and submitted December 19, 1989,\\nreversed and remanded March 14, 1990\\nHEATHMAN, Appellant, v. HEATHMAN, Respondent.\\n([ AXXXX-XXXXX ]; CA A60454)\\n788 P2d 475\\nIrving W. Potter, Portland, argued the cause for appellant. On the brief were Leslie M. Roberts and Josselson, Potter & Roberts, Portland.\\nNo appearance for respondent.\\nBefore Buttler, Presiding Judge, and Warren and Rossman, Judges.\\nWARREN, J.\", \"word_count\": \"560\", \"char_count\": \"3471\", \"text\": \"WARREN, J.\\nPlaintiff (husband) appeals from the judgment dismissing his complaint on the ground that the court lacked personal jurisdiction over defendant (wife). ORCP 21A(2). We reverse.\\nThe parties' marriage was dissolved in Multnomah County in 1983. The decree of dissolution incorporated their property settlement agreement. A dispute later arose about the interpretation of the agreement, and wife, who had moved to Florida, brought an action against husband in Multnomah County. See Heathman and Heathman, 94 Or App 223, 764 P2d 966 (1988). The trial court held that husband owed wife $18,846.50. Husband appealed. During the pendency of the appeal, wife allegedly agreed to accept $7,500 in settlement of the dispute. Husband sent wife a promissory note in that amount. When wife refused to execute a satisfaction of judgment, ORS 18.350(3), husband brought this action for a declaratory judgment in Multnomah County. The court held that it lacked personal jurisdiction over wife, a Florida resident.\\nHusband concedes that none of the specific provisions for jurisdiction over a nonresident defendant in subsections B through K of ORCP 4 apply. He relies on the general provision, ORCP 4L, which extends jurisdiction\\n\\\"in any action where prosecution of the action against a defendant in this state is not inconsistent with the Constitution of this state or the Constitution of the United States.\\\"\\nIn deciding whether an exercise of jurisdiction is constitutional, we consider these factors:\\n\\\"First, the defendant must purposefully avail himself of the privilege of acting in the forum state or of causing important consequences in that state. Second, the cause of action must arise from the consequences in the forum state of the defendant's activities. Finally, the activities of the defendant or the consequences of those activities must have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable.\\\" State ex rel White Lbr. v. Sulmonetti, 252 Or 121, 127, 448 P2d 571 (1968). (Citation omitted.)\\nSee also Burger King Corp. v. Rudzewicz, 471 US 462, 105 S Ct 2174, 85 L Ed 2d 528 (1985).\\nWife purposefully availed herself of the privilege of acting in Oregon when she sued in Oregon to enforce the property settlement agreement. See O'Connor and Lerner, 70 Or App 658, 663, 690 P2d 1095 (1984). The present action arises out of that action, because husband now seeks a declaration that he and wife had settled it. See State ex rel Michelin v. Wells, 294 Or 296, 302, 657 P2d 207 (1982). Finally, the exercise of jurisdiction over her is reasonable. See Burger King Corp. v. Rudzewicz, supra, 471 US at 476-78. Oregon has an interest in adjudicating the case, because it calls for a determination of the efficacy of an Oregon judgment. Compare North Pacific v. Guarisco, 293 Or 341, 355, 647 P2d 920 (1982). Moreover, it would not be reasonable to require husband to go to Florida to adjudicate whether he and wife had settled an Oregon action that wife had brought.\\nReversed and remanded.\"}"
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diff --git a/or/4409789.json b/or/4409789.json
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+"{\"id\": \"4409789\", \"name\": \"STATE OF OREGON, Respondent, v. FREDERIC HENRY STARKWEATHER, III, Appellant\", \"name_abbreviation\": \"State v. Starkweather\", \"decision_date\": \"1989-08-09\", \"docket_number\": \"87CR-1823; CA A48067\", \"first_page\": \"7\", \"last_page\": \"11\", \"citations\": \"98 Or. App. 7\", \"volume\": \"98\", \"reporter\": \"Oregon Reports, Court of Appeals\", \"court\": \"Oregon Court of Appeals\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T17:38:58.214306+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Buttler, Presiding Judge, and Warren and Rossman, Judges.\", \"parties\": \"STATE OF OREGON, Respondent, v. FREDERIC HENRY STARKWEATHER, III, Appellant.\", \"head_matter\": \"Argued and submitted February 28,\\naffirmed August 9, 1989\\nSTATE OF OREGON, Respondent, v. FREDERIC HENRY STARKWEATHER, III, Appellant.\\n(87CR-1823; CA A48067)\\n777 P2d 418\\nSteven V. Humber, Salem, argued the c\\u00e1use for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.\\nThomas H. Denney, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem.\\nBefore Buttler, Presiding Judge, and Warren and Rossman, Judges.\\nBUTTLER, P. J.\", \"word_count\": \"892\", \"char_count\": \"5247\", \"text\": \"BUTTLER, P. J.\\nDefendant seeks reversal of his convictions for possession of a controlled substance, ORS 475.992, and unlawful possession of a weapon, ORS 166.250, assigning as error the trial court's refusal to suppress evidence seized when defendant's car was stopped. We affirm.\\nOn September 6, 1987, Deputies Downing and Oswald were watching traffic on Highway 101 in Coos County. Downing saw defendant drive by at a speed admitted by defendant to be 85 miles per hour. As Downing began to pursue defendant, he saw him swerve into the oncoming lane of traffic. Downing testified that he pursued defendant for two or three miles, at a speed of almost 100 miles per hour, before defendant stopped.\\nDowning pulled defendant over and, as he approached defendant's pick-up truck, saw scales of a type commonly used to weigh marijuana protruding from a paper bag in the bed of the truck. He also saw defendant, the sole occupant of the vehicle, move to his right, as if he were reaching for something on the floor or seat of the passenger compartment. Defendant appeared nervous, continually glancing back and forth between Downing and Oswald. Oswald watched defendant while Downing went to his patrol car to check defendant's driver's license and to prepare a citation.\\nDefendant's truck had overheated, and he was permitted to put water into the radiator. He obtained a gallon jug of water from the bed of his truck and opened the hood only about a foot, so that the officers could not see what was inside. When defendant returned to the driver's seat, Oswald saw him look down at a coat on the seat beside him two or three times and then move his hand toward it. He jerked his hand abruptly away from the coat when Oswald stepped forward to see what he was doing. Oswald then asked defendant to move the coat, and defendant started to comply, but then said, \\\"Don't make me do that, officer.\\\" Oswald became suspicious that defendant would do something if he were forced to pick v. the coat. He asked defendant to step out of the vehicle and told him that he was going to pick v. the coat \\\"for officer safety.\\\" He did so and found a loaded .38 caliber revolver.\\nOswald gave the gun to Downing, who ran a serial number check on it and found it to be stolen. Defendant was then arrested. A pat-down search yielded a pocket knife and a smoking pipe containing marijuana residue. Empty plastic baggies were found in the coat. The officers then opened the hood and found over a pound of marijuana.\\nOn appeal, defendant challenges only the search under the coat, contending that, because it was unlawful, all physical evidence obtained as a result of and following that search should have been suppressed. His basic premise is that Oswald violated his constitutional rights when he instructed him to move the coat. He relies on State v. Bates, 304 Or 519, 747 P2d 991 (1987), in which the court reversed the conviction of a man stopped for a traffic violation, because the officer searched the defendant's vehicle when none of the circumstances confronted by the officer, either individually or collectively, supported a reasonable suspicion that the defendant posed an immediate threat to the officer. The circumstances relied upon in Bates were: The vehicle had out of state plates; it was late at night; it was a high crime area; defendant had long hair and wore a black leather jacket; and there were a VCR and a television set in the back seat. The court held that, because none of those facts justified the officer's suspicion that the defendant posed an immediate threat to his safety, the officer was not justified in requiring the defendant to remove and open a bag under the driver's seat of his automobile.\\nHere, however, defendant's conduct provided objective, articulable facts that gave rise to a reasonable suspicion that defendant was armed and dangerous. He had seemed nervous or excited from the moment that he was stopped. He had been watching both officers constantly. He had filled his radiator without fully opening the hood, as if he were attempting to conceal something in the engine compartment or to prevent Oswald from seeing something concealed there. He had reentered his pickup, glanced two or three times at a coat on the seat beside him, started to reach under it and jerked his hand away rapidly when Oswald drew closer. When asked to move the coat, he said, \\\"Don't make me do that, officer.\\\" That conduct on defendant's part gave Oswald ample reason to suspect that defendant had a weapon concealed in or under the coat and had reached for it.\\nDefendant does not contend that the search under the hood of the truck was otherwise illegal.\\nAffirmed.\"}"
\ No newline at end of file
diff --git a/or/4413357.json b/or/4413357.json
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+"{\"id\": \"4413357\", \"name\": \"GRIFFITH, Appellant, v. HODES et al, Respondents\", \"name_abbreviation\": \"Griffith v. Hodes\", \"decision_date\": \"1989-05-10\", \"docket_number\": \"A8702-01086; CA A48557\", \"first_page\": \"387\", \"last_page\": \"392\", \"citations\": \"96 Or. App. 387\", \"volume\": \"96\", \"reporter\": \"Oregon Reports, Court of Appeals\", \"court\": \"Oregon Court of Appeals\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T20:57:07.723885+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Richardson, Presiding Judge, and Newman and Deits, Judges.\", \"parties\": \"GRIFFITH, Appellant, v. HODES et al, Respondents.\", \"head_matter\": \"Argued and submitted March 3,\\nreversed and remanded May 10,\\nreconsideration denied June 23,\\npetition for review denied August 1, 1989 (308 Or 197)\\nGRIFFITH, Appellant, v. HODES et al, Respondents.\\n([ AXXXX-XXXXX ]; CA A48557)\\n772 P2d 1370\\nStephen L. Brischetto, Portland, argued the cause for appellant. With him on the briefs was Baldwin & Brischetto, Portland.\\nLee M. Hess, Portland, argued the cause for respondents. With him on the brief was Swire, Riebe & Hess, Portland.\\nBefore Richardson, Presiding Judge, and Newman and Deits, Judges.\\nRICHARDSON, P. J.\", \"word_count\": \"1325\", \"char_count\": \"8628\", \"text\": \"RICHARDSON, P. J.\\nPlaintiff brought this action against his former employers for wrongful discharge, unlawful employment practices and breach of contract. He alleged that his discharge was motivated by discrimination and was based on his having a physical handicap and his having complained about the unsafe working conditions that allegedly produced the handicap. ORS 654.062; ORS 659.425. He also alleged that the discharge was in retaliation for his having sought reasonable accommodation for the handicap and that the discharge violated defendants' personnel manual. Defendants moved for summary judgment on the general ground that there was no evidence demonstrating a genuine issue of material fact and on the additional ground that plaintiffs claims were barred by res judicata or collateral estoppel. The trial court granted the motion. Plaintiff appeals, and we reverse.\\nPlaintiff's employment duties included painting automobile transmissions. He developed physical symptoms, which he attributed to emissions from the paint and which he contends constitute a handicap. He complained to defendants and to the Accident Prevention Division about the perceived work safety problems relating to the emissions. Defendants supplied him with a respirator, which he regarded as inadequate. He refused to work unless they gave him a \\\"functional\\\" one. They ordered him to perform his job and, after his continued refusal, they fired him. After his discharge, plaintiff filed claims for workers' compensation and unemployment compensation. The Workers' Compensation Board and the Employment Appeals Board rejected the claims. Defendants base their res judicata and collateral estoppel contentions on the proceedings on the claims.\\nDefendants' evidence about the two administrative proceedings consisted solely of the referees' decisions and the boards' decisions affirming them. Assuming that both of those proceedings could otherwise give rise to res judicata or collateral estoppel in this action, see Chavez v. Boise Cascade Corporation, 307 Or 632, 772 P2d 409 (1989), we conclude that defendants' showing in support of their summary judgment motion did not demonstrate the relationship between the issues that were or could have been raised or decided in the earlier proceedings and in this one that is necessary to support their contentions.\\nThe orders on the workers' compensation claim show that the referee and Board found that plaintiff had not established a right to compensation for \\\"organic solvent encephalopathy.\\\" Defendants argue that the Board found that plaintiffs exposure to the solvents did not cause \\\"encephalopathy or any of his symptoms.\\\" (Emphasis supplied.) We do not agree that the Board so found. The quoted language was a summary of an expert's evidence, not a Board finding. It can have no barring or preclusive effect. See Chavez v. Boise Cascade Corporation, supra.\\nDefendants also appear to suggest that the Board's ultimate finding was equivalent to a determination that plaintiff was not harmed by the exposure at all and is not handicapped. We are unable to make that connection. We cannot even determine from the face of the order what \\\"organic solvent encephalopathy\\\" is, let alone whether it is the only possible condition or handicap that can result from the events alleged by plaintiff in this action. Whether or not other portions of the workers' compensation record might substantiate defendants' arguments, the orders alone do not, and they are all that defendants offered. See Shannon v. Moffett, 43 Or App 723, 727, n 2, 604 P2d 407 (1979), rev den 288 Or 701 (1980).\\nThe unemployment compensation claim proceeding also provides no basis for res judicata or collateral estoppel, insofar as the evidence in the record demonstrates. The referee's opinion, which EAB adopted, was that plaintiffs refusal to perform assigned work was misconduct that disqualified him from receiving benefits. The fact that plaintiff was guilty of work-connected misconduct and the underlying facts found by the referee are not decisive of, or even related to, the factual allegations of retaliatory and discriminatory conduct that he makes against defendants here. See Chavez v. Boise Cascade Corporation, supra.\\nThe closer question is whether the ultimate finding in the unemployment compensation proceeding is related to plaintiffs allegations concerning defendants' violation of its personnel manual in any way that could give rise to res judicata or collateral estoppel. The manual provides that, under most circumstances, an employe cannot be discharged without having received three warnings in a one-year period. It also provides that some infractions will support termination without warning. Those include an \\\"infraction of rules\\\" and \\\"serious bad behavior\\\" (the listed examples of which are drinking or being drunk on the job, abusive language, fighting, stealing and deliberate destruction of property). Consequently, the referee's finding of misconduct does not actually or necessarily decide the same factual or legal question as the one presented by plaintiffs contract claim, because the manual may create a higher threshold for defendants to be able to discharge an employe than the unemployment insurance law creates for establishing that a discharge was based on work-connected misconduct. The unemployment compensation proceeding therefore does not have a collateral estoppel effect. It also does not give rise to res judicata, because the meaning and application of the discharge provisions of the manual were not and could not have been decided in the unemployment compensation proceeding. We reject defendants' estoppel by judgment arguments.\\nDefendants also attempt to support the summary judgment by arguing that, in a number of respects, plaintiff s evidence fails to raise genuine and material factual issues concerning the reason for his firing, defendants' compliance with statutory and contractual obligations and the existence of a handicap. We do not agree with those arguments, and they require no specific comment. The court erred by entering the summary judgment.\\nReversed and remanded.\\nThe Bureau of Labor and Industries conducted an investigation on plaintiffs complaints and concluded that there was substantial evidence that defendants had violated ORS 654.062, by discharging him after he had \\\"opposed unsafe working conditions,\\\" and ORS 659.425, by terminating him rather than accommodating a physical handicap. The parties make a number of arguments regarding the Bureau's determinations, which we need not address in view of the bases for our decision.\\nIn Pintok v. Employment Division, 32 Or App 273, 573 P2d 773 (1978), we held that there was substantial evidence to support EAB's finding of misconduct by an employe who was discharged for refusing to work with a welding machine. The employe's and the employer's testimony were directly contradictory concerning the adequacy of the ventilation in the work area and the availability of respirators. We also rejected the employe's contention that EAB's order was contrary to ORS 654.062, because\\n\\\"[t]his statute does not protect claimant under the facts of this case. ORS 654.062(5) (a) forbids termination of an employee for opposing forbidden practices and for instituting or participating in a proceeding against the employer under Chapter 654. Claimant here refused to do work requested of him. This does not constitute opposing a practice forbidden by Chapter 654.\\\" 32 Or App at 277.\\nPintok was a direct review of an EAB decision. No question was presented about whether an employer's action can be discriminatory and be proscribed by ORS 654.062, even if the employe is guilty of misconduct. Clearly, an employer can be guilty of discriminating or retaliating against an employe for making a safety complaint at the same time that the employe improperly refuses to work because of an unfounded safety concern. The events are not mutually exclusive. Any suggestion to the contrary in Pintok is incorrect. Neither party cites or relies on Pintok.\"}"
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+"{\"id\": \"4417291\", \"name\": \"STATE OF OREGON, Appellant, v. PATRICK E. FARLEY, Respondent\", \"name_abbreviation\": \"State v. Farley\", \"decision_date\": \"1988-11-09\", \"docket_number\": \"87-7105, 87-03-103; CA A45512\", \"first_page\": \"723\", \"last_page\": \"730\", \"citations\": \"93 Or. App. 723\", \"volume\": \"93\", \"reporter\": \"Oregon Reports, Court of Appeals\", \"court\": \"Oregon Court of Appeals\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T17:36:28.225287+00:00\", \"provenance\": \"CAP\", \"judges\": \"ROSSMAN, J.\", \"parties\": \"STATE OF OREGON, Appellant, v. PATRICK E. FARLEY, Respondent.\", \"head_matter\": \"Argued and submitted February 29, resubmitted In Banc September 8,\\nreversed and remanded November 9, 1988,\\nreconsideration denied January 13, petition for review allowed February 14,1989 (307 Or 405)\\nSee later issue Oregon Reports\\nSTATE OF OREGON, Appellant, v. PATRICK E. FARLEY, Respondent.\\n(87-7105, 87-03-103; CA A45512)\\n764 P2d 230\\nJanet A. Klapstein, Assistant Attorney General, Salem, argued the cause for appellant. With her on the brief were Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem.\\nDiane L. Alessi, Salem, argued the cause for respondent. On the brief were Gary D. Babcock, Public Defender, Salem, and Henry M. Silberblatt, Salem.\\nROSSMAN, J.\\nWarden, J., dissenting.\", \"word_count\": \"2333\", \"char_count\": \"14241\", \"text\": \"ROSSMAN, J.\\nIn this prosecution for driving while suspended, ORS 811.175, and driving without insurance, ORS 806.010, the state appeals from the trial court's order suppressing evidence obtained after a stop of defendant's vehicle. We reverse.\\nDefendant was stopped because his vehicle had no visible license plates, an apparent traffic infraction. ORS 803.540. While talking with defendant, the officer saw a valid temporary vehicle permit posted on defendant's windshield; that permit allowed defendant to operate the car without license plates. ORS 803.540(2)(a). The officer explained the reason for the stop and asked defendant for his driver's license. Defendant presented his license and told the officer that he had no insurance. The officer ran a DMV check on defendant's license; on the basis of information thus obtained, he cited defendant for driving while suspended. He also cited defendant for driving without insurance. At the hearing, the officer could not recall whether he saw the permit before or after he asked for defendant's license. The trial court held that, once the officer had observed the valid temporary permit, he had no authority to make any further inquiry regarding defendant's operator's license.\\nThe state has relied on State v. Brister, 34 Or App 575, 579 P2d 863, rev den 284 Or 521 (1978), and State v. Fleming, 63 Or App 661, 665 P2d 1235 (1983), for the proposition that a police officer investigating an apparent traffic infraction has authority to request a motorist to display a driver's license even after the officer discovers that no infraction actually occurred. In those cases, however, the court viewed an officer's authority to make traffic stops as inherent in the power to arrest. Thus, a traffic stop was justified where the officer had probable cause to believe that an infraction had occurred. Former ORS 484.350(4). The court also relied on former ORS 482.040(2)(b), which required drivers to \\\"display\\\" their licenses to peace officer \\\"on demand.\\\" Because different statutory provisions now apply, Brister and Fleming no longer control.\\nORS 810.410(3), ORS 153.110(3) and ORS 807.570 now govern the stop and detention of drivers for traffic infractions. ORS 810.410(3) provides, in part:\\n\\\"A police officer:\\n\\\"(a) Shall not arrest a person for a traffic infraction.\\n\\\"(b) May stop and detain a person for a traffic infraction for the purposes of investigation reasonably related to the traffic infraction, identification and issuance of citation.\\\" (Emphasis supplied.)\\nORS 153.110(3) provides:\\n\\\"Any person authorized to issue citations pursuant to this section may not arrest for violation of the infraction but may detain any individual reasonably believed to have committed a violation, only so long as is necessary to determine, for the purposes of issuing a citation, the identity of the violator and such additional information as is appropriate for law enforcement agencies in the state.\\\" (Emphasis supplied.)\\nORS 807.570 provides, in pertinent part:\\n\\\"(1) A person commits the offense of failure to carry a license or to present a license to a police officer if the person either:\\n<<\\n\\\"(b) Does not present and deliver such license or permit to a police officer when requested by the police officer under any of the following circumstances:\\n\\\"(A) Upon being lawfully stopped or detained when driving a vehicle.\\nIn this case, the officer stopped defendant \\\"for the purposes of investigation reasonably related to the [apparent] traffic infraction.\\\" Because \\\"the facts relied upon by the officer, when viewed objectively, provided probable cause to believe that that traffic infraction had been committed,\\\" the initial stop clearly was valid. State v. Doherty, 92 Or App 105, 107, 757 P2d 860, rev den 306 Or 660, 763 P2d 152 (1988); ORS 810.410(3). \\\"Having made a lawful stop, [the officer] could ask defendant to show his driver's license.\\\" State v. Auer, 90 Or App 459, 463 n 3, 752 P2d 1250 (1988); ORS 807.570. That authority continued despite the officer's discovery that the traffic infraction that he was investigating had not actually occurred.\\nORS 153.110(3) does not require otherwise. Because the officer reasonably believed defendant to have committed a traffic violation, the statute permitted him to detain defendant long enough to determine his identity and \\\"such additional information as is appropriate for law enforcement agencies in this state.\\\" Given the difficulty of ascertaining a driver's compliance with licensing laws, checking a license to see whether it is revoked or suspended is appropriate \\\"additional information\\\" for law enforcement agencies to obtain pursuant to a lawful stop.\\nReversed and remanded.\\nWe have never held to the contrary. State v. Flores, 68 Or App 617, 685 P2d 999, rev den 298 Or 151 (1984), did not deal with a stop based on a traffic infraction, but with a stop based on probable cause to believe a motorist had committed a crime. Similarly, State v. Messer, 71 Or App 506, 692 P2d 713 (1984), involved ORS 131.615, which requires that police, in order to make a stop, must have a reasonable suspicion that a person has committed a crime. Because different statutes apply to stops for suspected crimes and stops for traffic violations, these cases do not bear on the issue in this case. State v. Painter, 296 Or 422, 427, 676 P2d 309 (1984). For other cases involving the validity of stops made under ORS 131.615, see State v. Harris, 88 Or App 433, 745 P2d 813 (1987), rev den 305 Or 103 (1988); State v. Barndt, 68 Or App 755, 758 n 2, 683 P2d 166 (1984).\\nThe motorist's duty to present a license under ORS 807.570(1) (b) (A) arises only where the initial stop is valid. The presence of a valid stop in this case thus distinguishes it from State v. Painter, supra, 296 Or at 428; State v. Starr, 91 Or App 267, 270, 754 P2d 618 (1988); and State v. Hart, 85 Or App 174, 176, 735 P2d 1283 (1987).\\nThe dissent misconstrues ORS 153.110(3) as a direct legislative limitation on an officer's authority to request a driver's license under ORS 807.570. At best, ORS 153.110(3) is ambiguous on the issue of whether, once a motorist is \\\"reasonably believed to have committed a violation,\\\" the officer may request identification and other appropriate information. Rules of statutory construction and legislative history thus become relevant as extrinsic evidence of legislative intent. See Sager v. McClendon, 296 Or 33, 40, 672 P2d 697 (1983).\\nThe legislature did not intend ORS 153.110(3) to restrict an officer's authority to request a driver's license after making a lawful stop. On the contrary, its purpose in passing ORS 153.110(3) was to permit certain state park employees to issue citations for violation of park regulations without giving them full powers of arrest and detention. See Minutes, Senate Committee on Justice (July 20,1981 \\u2014 remarks of Senator Glenn Otto); Exhibit A, HB 2046, House Judiciary Committee, Subcommittee 1 (April 7,1981 \\u2014 written remarks of Bill Nessly).\\nMoreover, where two statutes applicable to the same subject cannot be harmonized, the specific should prevail over the general. See Pioneer Trust Bank v. Mental Health Division, 87 Or App 132, 135, 742 P2d 51 (1987); Steamboaters v. Winchester Water Control Dist., 69 Or App 596, 599, 688 P2d 92 (1984), rev den 298 Or 553 (1985). Even if we accept the dissent's argument that the two statutes require different outcomes, ORS 807.570, which specifies the circumstances under which an officer may request to see a motorist's driver's license, should prevail over the more general language of ORS 153.110(3).\"}"
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+"{\"id\": \"4423732\", \"name\": \"DAVID M. GIBA, Appellant, v. R. L. WRIGHT, Respondent\", \"name_abbreviation\": \"Giba v. Wright\", \"decision_date\": \"1991-12-26\", \"docket_number\": \"CV90-100; CA A65394\", \"first_page\": \"423\", \"last_page\": \"423\", \"citations\": \"110 Or. App. 423\", \"volume\": \"110\", \"reporter\": \"Oregon Reports, Court of Appeals\", \"court\": \"Oregon Court of Appeals\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T18:07:30.962326+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Richardson, Presiding Judge, and Joseph, Chief Judge, and Deits, Judge.\", \"parties\": \"DAVID M. GIBA, Appellant, v. R. L. WRIGHT, Respondent.\", \"head_matter\": \"Argued and submitted February 4,\\naffirmed December 26, 1991\\nDAVID M. GIBA, Appellant, v. R. L. WRIGHT, Respondent.\\n(CV90-100; CA A65394)\\n821 P2d 449\\nWade P. Bettis, Jr., La Grande, argued the cause for appellant. With him on the brief was Bettis & Ricker, P.C., La Grande.\\nTimothy A. Sylwester, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem.\\nBefore Richardson, Presiding Judge, and Joseph, Chief Judge, and Deits, Judge.\\nJoseph, C. J., vice Newman, J., deceased.\", \"word_count\": \"107\", \"char_count\": \"670\", \"text\": \"PER CURIAM\\nAffirmed. Boone v. Wright, 110 Or App 281, 822 P2d 719 (1991).\"}"
\ No newline at end of file
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+"{\"id\": \"4425975\", \"name\": \"STATE OF OREGON, Respondent, v. EDWARD WALTER KLUBER, Appellant\", \"name_abbreviation\": \"State v. Kluber\", \"decision_date\": \"1991-11-13\", \"docket_number\": \"89-06025C; CA A65099\", \"first_page\": \"686\", \"last_page\": \"687\", \"citations\": \"109 Or. App. 686\", \"volume\": \"109\", \"reporter\": \"Oregon Reports, Court of Appeals\", \"court\": \"Oregon Court of Appeals\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-11T00:28:33.515716+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Warren, Presiding Judge, and Riggs and Edmonds, Judges.\", \"parties\": \"STATE OF OREGON, Respondent, v. EDWARD WALTER KLUBER, Appellant.\", \"head_matter\": \"Argued and submitted September 27,\\nreversed and remanded for new trial November 13, 1991\\nSTATE OF OREGON, Respondent, v. EDWARD WALTER KLUBER, Appellant.\\n(89-06025C; CA A65099)\\n820 P2d 903\\nLouis R. Miles, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Sally L. Avera, Public Defender, Salem.\\nJanet A. Klapstein, Assistant Attorney General, Salem., argued the cause for respondent. With her on the brief were Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem.\\nBefore Warren, Presiding Judge, and Riggs and Edmonds, Judges.\\nPER CURIAM\", \"word_count\": \"142\", \"char_count\": \"888\", \"text\": \"PER CURIAM\\nThe state concedes that the record does not contain a written waiver of a jury trial. We accept the concession. Or Const, Art I, \\u00a7 11; ORS 136.001.\\nGiven the concession, we need not address defendant's other assignment of error.\\nReversed and remanded for a new trial.\"}"
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+"{\"id\": \"4426702\", \"name\": \"STATE OF OREGON, Respondent, v. LARRY FLOYD WIMBER, Appellant\", \"name_abbreviation\": \"State v. Wimber\", \"decision_date\": \"1991-06-26\", \"docket_number\": \"C90-01-30494; CA A66481\", \"first_page\": \"1\", \"last_page\": \"6\", \"citations\": \"108 Or. App. 1\", \"volume\": \"108\", \"reporter\": \"Oregon Reports, Court of Appeals\", \"court\": \"Oregon Court of Appeals\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-11T02:02:50.081791+00:00\", \"provenance\": \"CAP\", \"judges\": \"JOSEPH, C. J.\", \"parties\": \"STATE OF OREGON, Respondent, v. LARRY FLOYD WIMBER, Appellant.\", \"head_matter\": \"On appellant\\u2019s renewed motion to stay sentence and for release pending appeal filed May 13,\\nmotion denied June 26, 1991\\nSTATE OF OREGON, Respondent, v. LARRY FLOYD WIMBER, Appellant.\\n(C90-01-30494; CA A66481)\\n814 P2d 169\\nDes Connall, P.C., and Wayne Mackeson, Portland, for motion.\\nDave Frohnmayer, Attorney General, Virginia L. Linder, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, Salem, contra.\\nBefore Rossman, Presiding Judge, and Joseph, Chief Judge, and Edmonds, Judge.\\nJOSEPH, C. J.\", \"word_count\": \"1463\", \"char_count\": \"8638\", \"text\": \"JOSEPH, C. J.\\nDefendant was convicted on three counts of sexual abuse in the first degree, ORS 163.425, and was sentenced to five years' imprisonment on each count. He moved to stay the sentences pending appeal. That motion initially was denied on the ground that a request to stay a sentence on appeal should be addressed to the trial court in the first instance.\\nDefendant then moved the trial court for release, arguing that he was entitled to be admitted to bail pending appeal, citing Oregon Constitution, Article I, section 14; Hanson v. Gladden, 246 Or 494, 495, 426 P2d 465 (1967); Thomas v. Gladden, 239 Or 293, 295, 397 P2d 836 (1964); and Delaney v. Shobe, 218 Or 626, 628, 346 P2d 126 (1959). Defendant appended to his motion a copy of an order issued by this court in an unrelated case, State v. Tyler, Court of Appeals case number A64264, in which we said:\\n\\\"The trial court has discretion in the amount of security it may require and to impose conditions as appropriate to insure that defendant does not abscond, but the court does not have discretion to deny release altogether.\\\"\\nThe trial court denied defendant's motion for a stay. Defendant renewed his motion for a stay in this court. By order dated May 30, 1991, we denied the motion and disavowed the quotation from the Tyler order. We are aware that the order in Tyler has been cited in other cases in support of the contention that a trial court must release a defendant pending appeal.\\nThe first issue is whether this court has independent statutory authority to stay a sentence of confinement and release a defendant pending appeal. ORS 135.285(2) provides:\\n\\\"After judgment of conviction in municipal, justice or district court, the court shall order the original release agreement, and if applicable, the security, to stand pending appeal, or deny, increase or reduce the release agreement and the security. If a defendant appeals after judgment of conviction in circuit court for any crime other than murder or treason, release shall be discretionary.\\\"\\nORS 138.135 provides, in part:\\n\\\"(1) A sentence of confinement shall be stayed if an appeal is taken and the defendant elects not to commence service of the sentence or is admitted to bail. If a defendant is not admitted to bail and elects not to commence service of the sentence pending appeal, the defendant shall be held in custody at the institution designated in the judgment without execution of sentence .\\n\\\"(2) A sentence to pay a fine or a fine and costs, if an appeal is taken, may be stayed by the district court, the circuit court, the Court of Appeals, or by the Supreme Court upon such terms as the court deems proper.\\n\\\"(3) If a petition for review by the Supreme Court is filed, any stay shall remain in effect pending a final disposition of the cause, unless otherwise ordered by the Supreme Court.\\\"\\nThe first sentence of ORS 138.135(1) is in the passive voice and does not say which court has the authority to give the stay. ORS 135.285(2) refers to \\\"the court\\\" without making it clear whether it means the trial court or the appellate court. However, we note that ORS 135.285(2) is found in the chapter describing trial court procedures and immediately follows ORS 135.285(1), which authorizes the trial court to modify a release decision during the course of proceedings in the trial court. We also note that ORS 138.135(2) gives appellate courts concurrent authority to grant stays of fines and awards of costs in criminal cases, but contains no similar grant of authority for an appellate court to make decisions regarding release from custody pending appeal. Reading the statutes together, we are persuaded that the legislature intended to assign to the trial court the authority and responsibility for deciding whether a defendant should be released pending appeal. Accord Johnson v. Maass, 98 Or App 97, 778 P2d 508 (1989).\\nThe state has suggested, citing Thomas v. Gladden, supra, and State v. Boots, 94 Or App 713, 767 P2d 450, rev'd on other grounds 308 Or 371, 780 P2d 725 (1989), that, after a notice of appeal has been filed, even the trial court itself has no jurisdiction to decide a motion to stay the judgment and that a defendant's only remedy is by way of a petition for writ of habeas corpus. That position is untenable. Under ORS 19.033(1), which is made applicable to criminal cases by ORS 138.185(2), the trial court retains \\\"such powers in connection with the appeal as are conferred upon it by law. ' ' The power to determine whether to stay a sentence of confinement and to release a defendant pending appeal is one of the powers that the trial court retains, notwithstanding the filing of a notice of appeal. ORS 135.285(2); ORS 138.135(1).\\nTurning to the issue of whether this court has jurisdiction to review the trial court's decision on a motion for stay, we conclude that it does not. In civil cases, ORS 19.040, ORS 19.045 and ORS 19.050 authorize the trial court to make various decisions relating to stay of enforcement of judgments, and ORS 19.050(4)(b) confers authority on the appellate courts to review those trial court decisions under some circumstances. There is no comparable provision applicable to criminal cases that authorizes this court to review a trial court's release decision. A trial court decision on a post-judgment motion to stay enforcement of a sentence is not one of the decisions that is appealable by a defendant under ORS 138.040, ORS 138.050 or ORS 138.053 or that is reviewable as an interlocutory order under ORS 138.040(1)(a). See State v. Sullens, 106 Or App 590, 809 P2d 700 (1991).\\nAn appellate court has inherent authority to preserve the subject matter of an appeal and to render effective the exercise of appellate jurisdiction. Livesley v. Krebs Hop Company, 57 Or 352, 97 P 718, 107 P 460, 112 P 1 (1910). See also Helms Groover & Dubber Co. v. Copenhagen, 93 Or 410, 177 P 935 (1919). However, when the legislature has given the trial court power to make a release decision and the trial court's exercise of that power does not defeat the jurisdiction of an appellate court or render ineffective the exercise of appellate jurisdiction, an appellate court should not exercise its inherent authority. Helms Groover & Dubber Co., supra, 93 Or at 417; Livesley v. Krebs Hop Company, supra, 57 Or at 356.\\nMotion to stay sentence and for release pending appeal denied.\\nThe order reads, in toto:\\n\\\"Defendant has moved for a stay of sentence and for release from incarceration. The court concludes that, notwithstanding ORS 135.285(2), defendant is entitled to have 'bail' (security) established, which, if posted, would permit him to be released pending appeal. ORS 138.135(1); Delaney v. Shobe, 218 Or 626, 346 P2d 126 (1959). The trial court has discretion in the amount of security it may require and to impose conditions as appropriate to insure that defendant does not abscond, but the court does not have discretion to deny release altogether.\\n\\\"Therefore, defendant's motion is remanded to the trial court for the establishment of the amount of security and other conditions of release pending appeal.\\\"\\nThe need for both ORS 138.135(1) and ORS 135.285(2) is not apparent. If the provisions of both statutes are necessary, we suggest that the legislature consider combining them or at least placing them in the same chapter, preferably the chapter relating to appeals in criminal cases.\\nBecause we hold that this court has no statutory authority to review a trial court's decision regarding release pending appeal,, either in an appeal of the judgment of conviction and sentence or by way of an appeal of the order embodying the release decision, grounds may exist for the Supreme Court's exercise of original habeas corpus jurisdiction under the Oregon Constitution, Article VII (amended), section 2. We need not discuss that issue.\\nDefendant makes no claim that it is necessary for this court to review the trial court's exercise of discretion and direct a different result in order to preserve the subject matter of the appeal or to render effective the exercise of appellate jurisdiction.\"}"
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+"{\"id\": \"4428974\", \"name\": \"STATE OF OREGON, Respondent, v. REYES ARNOLDO FIERRO, Appellant\", \"name_abbreviation\": \"State v. Fierro\", \"decision_date\": \"1991-06-12\", \"docket_number\": \"89-31B-C-1; CA A62704\", \"first_page\": \"569\", \"last_page\": \"570\", \"citations\": \"107 Or. App. 569\", \"volume\": \"107\", \"reporter\": \"Oregon Reports, Court of Appeals\", \"court\": \"Oregon Court of Appeals\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T21:53:24.620983+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Warren, Presiding Judge, and Riggs and Edmonds, Judges.\", \"parties\": \"STATE OF OREGON, Respondent, v. REYES ARNOLDO FIERRO, Appellant.\", \"head_matter\": \"Argued and submitted March 29,\\nreversed and remanded for new trial June 12, 1991\\nSTATE OF OREGON, Respondent, v. REYES ARNOLDO FIERRO, Appellant.\\n(89-31B-C-1; CA A62704)\\n813 P2d 57\\nIrene B. Taylor, Salem, argued the cause for appellant. With her on the brief was Sally L. Avera, Public Defender, Salem.\\nJonathan H. Fussner, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem.\\nBefore Warren, Presiding Judge, and Riggs and Edmonds, Judges.\\nPER CURIAM\", \"word_count\": \"300\", \"char_count\": \"1847\", \"text\": \"PER CURIAM\\nDefendant appeals his convictions for possession of a controlled substance, ORS 475.992(4), and frequenting a place where controlled substances are used. ORS 167.222. He asserts, and the state concedes, that the trial court erred by failing to obtain defendant's consent to a jury of less than 12 persons. Or Const, Art I, \\u00a7 11; ORS 136.210(1). A defendant's affirmative consent on the record is required before a trial can proceed with less than 12 persons on the jury. State v. Lutz, 306 Or 499, 502, 760 P2d 249 (1988).\\nReversed and remanded for a new trial.\\nWe note that defendant also assigns error to the trial court's refusal to allow his counsel an opportunity to question prospective jurors about their previous jury experience. The scope of voir dire examination is within the trial court's discretion. In State v. Barnett, 251 Or 234, 237, 445 P2d 124 (1968), the court said that \\\"[t]he trial court cannot prohibit counsel from seeking information about prospective jurors which is obviously relevant.\\\" A party is not limited by a prospective juror's general answer to a question about impartiality and fairness, but may, within reason, pursue the matter and ask questions about particular beliefs and feelings. See State v. Barnett, supra.\"}"
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diff --git a/or/4436174.json b/or/4436174.json
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+"{\"id\": \"4436174\", \"name\": \"STATE OF OREGON, Appellant - Cross-Respondent, v. GARY EVERETT ANDERSON, Respondent - Cross-Appellant\", \"name_abbreviation\": \"State v. Anderson\", \"decision_date\": \"1993-03-31\", \"docket_number\": \"91-03-34073; CA A72059\", \"first_page\": \"23\", \"last_page\": \"26\", \"citations\": \"119 Or. App. 23\", \"volume\": \"119\", \"reporter\": \"Oregon Reports, Court of Appeals\", \"court\": \"Oregon Court of Appeals\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T22:44:00.744421+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Warren, Presiding Judge, and Riggs and Edmonds, Judges.\", \"parties\": \"STATE OF OREGON, Appellant - Cross-Respondent, v. GARY EVERETT ANDERSON, Respondent - Cross-Appellant.\", \"head_matter\": \"Argued and submitted December 30, 1992,\\nappeal and cross-appeal dismissed March 31, 1993\\nSTATE OF OREGON, Appellant - Cross-Respondent, v. GARY EVERETT ANDERSON, Respondent - Cross-Appellant.\\n(91-03-34073; CA A72059)\\n849 P2d 548\\nTimothy A. Sylwester, Assistant Attorney General, Salem, argued the cause for appellant - cross-respondent. On the brief were Charles S. Crookham, Attorney General, Virginia L. Linder, Solicitor General, and Michael C. Livingston, Assistant Attorney General, Salem.\\nSteven Humber, Deputy Public Defender, Salem, argued the cause for respondent - cross-appellant. With him on the brief was Sally L. Avera, Public Defender, Salem.\\nBefore Warren, Presiding Judge, and Riggs and Edmonds, Judges.\\nWARREN, P. J.\", \"word_count\": \"545\", \"char_count\": \"3414\", \"text\": \"WARREN, P. J.\\nDefendant was convicted of assault in the first degree and attempted aggravated murder. ORS 163.185; ORS 163.095. The court merged the convictions and sentenced defendant under the guidelines to 60 months in prison on the attempted murder conviction. The state appeals, arguing that the court erred in merging the convictions. We are without jurisdiction to review the claimed error and dismiss the appeal.\\nThe state contends that its appeal is pursuant to ORS 138.060(5), which allows the state to appeal from \\\"a judgment of conviction based on the sentence, as provided in ORS 138.222.\\\" (Emphasis supplied.) See also ORS 138.222(7). ORS 138.222(1) provides that \\\"a sentence imposed for a judgment of conviction may be reviewed only as provided by this section.\\\" (Emphasis supplied.) The state argues that its appeal comes within ORS 138.222(4)(a) as a claim that the court has \\\"failed to comply with requirements of law in imposing or failing to impose a sentence,\\\" because the court did not impose a sentence on each of the two convictions, \\\"as required under the sentencing guidelines.\\\" The state points to no guidelines provision governing the question of merger. Merger is controlled by ORS 161.062 or ORS 161.067, which the passage of the sentencing guidelines did not change.\\nMerger is not a sentence. It is the predicate of a sentence. As the Supreme Court stated:\\n\\\"Merger is based on the premise that when the act involved in one charge is necessarily involved in another charge, only one offense is committed and only one charge may be the basis for a conviction State v. Roach, 271 Or 764, 767 n 1, 534 P2d 508 (1975). (Emphasis supplied.)\\nSee also State v. Hodges, 43 Or App 547, 554, 603 P2d 1205 (1979).\\nUnder ORS 138.060, the state's rights of appeal are limited, and the extension of those rights by ORS 138.222 does not reach the claimed error here. ORS 138.222, part of the sentencing guidelines legislation, was not intended as a broad extension of the rights to appeal. Rather, the legislative history shows that the legislature worked to limit the circumstances in which an appeal may be taken. See State v. Adams, 315 Or 359, 367, 847 P2d 397 (1993). There is no statutory authority for the state's appeal and, accordingly, we dismiss it.\\nIn his brief, defendant \\\"waived\\\" his cross-appeal. We treat that waiver as a motion to dismiss the cross-appeal and allow it.\\nAppeal and cross-appeal dismissed.\\nOAR 253-12-010 provides:\\n\\\"When multiple convictions have been entered against a single defendant, the sentencing judge may impose consecutive or concurrent sentences as provided by ORS 137.122,137.123 and 137.370.\\\" (Emphasis supplied.)\"}"
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diff --git a/or/4437082.json b/or/4437082.json
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+"{\"id\": \"4437082\", \"name\": \"In the Matter of the Adoption of Tausha Hallford, a Child. Loretta HALLFORD and William Hallford, Appellants, v. Eric V. SMITH, Respondent\", \"name_abbreviation\": \"Hallford v. Smith\", \"decision_date\": \"1993-05-12\", \"docket_number\": \"58-89-04466; CA A69472\", \"first_page\": \"57\", \"last_page\": \"64\", \"citations\": \"120 Or. App. 57\", \"volume\": \"120\", \"reporter\": \"Oregon Reports, Court of Appeals\", \"court\": \"Oregon Court of Appeals\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-11T01:58:43.742299+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Rossman, Presiding Judge, and De Muniz and Leeson, Judges.\", \"parties\": \"In the Matter of the Adoption of Tausha Hallford, a Child. Loretta HALLFORD and William Hallford, Appellants, v. Eric V. SMITH, Respondent.\", \"head_matter\": \"Argued and submitted May 22, 1992,\\nreversed May 12,\\nreconsideration denied July 28,\\npetition for review denied August 24,1993 (317 Or 485)\\nIn the Matter of the Adoption of Tausha Hallford, a Child. Loretta HALLFORD and William Hallford, Appellants, v. Eric V. SMITH, Respondent.\\n(58-89-04466; CA A69472)\\n852 P2d 249\\nCarol K. Chadwick, Eugene, argued the cause for appellants. With her on the brief were Carol J. Hamilton and Anne Morrison, Eugene.\\nSusan Schmerer, Eugene, argued the cause and filed the brief for respondent.\\nBefore Rossman, Presiding Judge, and De Muniz and Leeson, Judges.\\nROSSMAN, P. J.\\nLeeson, J., vice Buttler, J., retired.\", \"word_count\": \"2655\", \"char_count\": \"15974\", \"text\": \"ROSSMAN, P. J.\\nPetitioners, mother and her husband, appeal from a judgment that set aside husband's adoption of mother's child because respondent, the putative father, did not receive notice of the adoption proceedings. We reverse.\\nIn February, 1987, mother, then 18, became pregnant. In March of that year, she told respondent, who was then 17, that he was child's father but that she did not want to marry him. Later that month, she ended their relationship and began seeing husband. Shortly thereafter, respondent left the area, but called mother twice during the pregnancy.\\nChild was born on November 7, 1987. Immediately after the birth, respondent called mother and asked her if he was the biological father. She said that he was not, and he did not pursue the matter.\\nPetitioners married on January 8, 1988. Together with mother, husband began raising child as his own. In March, 1989, respondent returned to the area and, when he heard that child resembled him, contacted mother in an effort to determine whether child was his. From then until May, 1989, respondent made several phone calls to mother, either directly or through his wife, in which he promised to make financial contributions for child's support if he was child's biological father. Although mother told respondent that she did not know if he was the biological father and advised him to establish paternity, she also repeatedly expressed a willingness to \\\"sit down and talk\\\" about support contributions and the issue of paternity.\\nOn May 30, 1989, petitioners filed for a stepparent adoption, which was granted in July. Respondent, who was not given notice of the adoption proceedings, learned of the adoption in October and immediately filed a petition for filiation. On March 20,1990, the trial court entered a default judgment of paternity for respondent, because mother had failed to appear.\\nOn March 30, 1990, respondent commenced this action to set aside the adoption judgment. Petitioners responded by moving to vacate the paternity judgment and to dismiss respondent's action to set aside the adoption. The trial court granted the motion to vacate the paternity judgment but denied the motion to dismiss. The court then held a hearing to determine whether to set aside the adoption. In March, 1991, a judgment was entered setting aside the adoption on the ground that mother had committed fraud within ORS 109.096(8).\\nWe review de novo. ORS 19.125(3); Hiskey v. Hamilton, 111 Or App 39, 43, 824 P2d 1170, rev den 313 Or 299 (1992).\\nORS 109.096(8) provides, in part:\\n\\\"A putative father has the primary responsibility to protect his rights, and nothing in this section shall be used to set aside an adoption unless the father establishes within one year after the entry of the final decree fraud on the part of a petitioner in the proceeding with respect to matters specified in subsections (1) to (5) of this section.\\\" (Emphasis supplied.)\\nIn their first assignment of error, petitioners contend that respondent's action is time barred by ORS 109.096(8), because he failed to obtain a judgment that \\\"established\\\" mother's fraud within one year of the adoption becoming final. They argue that the trial court erred in failing to construe the word \\\"establish\\\" in accordance with its plain and ordinary meaning and assign error to the court's conclusion that respondent's claim was timely because it was \\\"commenced\\\" within the one-year period. Respondent argues that petitioners' construction would produce an absurd result, because a court could be \\\"divested of authority to consider even a pending matter once the year has elapsed.\\\"\\nWhen interpreting a statutory provision, it is our task to \\\"discern and declare the intent of the legislature.\\\" Fifth Ave. Corp. v. Washington County, 282 Or 591, 596, 581 P2d 50 (1978); ORS 174.020. \\\"The starting point in every case involving a determination of legislative intent is the language of the statute itself.\\\" Whipple v. Howser, 291 Or 475, 479, 632 P2d 782 (1981); ORS 174.010. ORS 109.096 (8) provides that a putative father must \\\"establish\\\" fraud within the meaning of ORS 109.096(l)-(5) within one year after the adoption becomes final. Nowhere in the text of the statute is there any indication that the legislature intended \\\"establish\\\" to be synonymous with \\\"commence an action to establish.\\\" Although it may be unusual for the legislature to provide a limitation on an action so that a timely filed action may become time-barred while pending, examination of the circumstances surrounding the promulgation of ORS 109.096, as well as its legislative history, reveals that that is what the legislature intended here.\\nIn 1972, the United States Supreme Court ruled that an Illinois procedure for terminating parental rights of putative fathers without notice and a hearing violated the 14th Amendment due process and equal protection rights of the putative father. Stanley v. Illinois, 405 US 645, 658, 92 S Ct 1208, 31 L Ed 2d 551 (1972). Two years later, the Ninth Circuit held that the predecessor to ORS 109.096, former ORS 109.326(1), violated the putative father's rights recognized in Stanley, because it permitted termination of the putative father's parental rights without notice. Miller v. Miller, 504 F2d 1067 (9th Cir 1974). Former ORS 109.326(1) provided that, \\\"for all purposes relating to the adoption of the child the [putative father] of the child shall be disregarded just as if he were dead.\\\"\\nORS 109.096 was adopted in 1975. Or Laws 1975, ch 640, \\u00a7 7. The 1975 Legislature sought to replace ORS 109.326(1) with a procedure that would pass constitutional muster, but was reluctant to grant extensive rights to putative fathers. The \\\"absolute\\\" one-year deadline for establishing fraud in the adoption proceeding was responsive to an overriding concern for ensuring the finality of adoption decrees. That explains the legislature's decision to base the time bar of ORS 109.096(8) on a time other than the commencement of the action. See Minutes, Senate Committee on Judiciary, (April 29,1975, pp. 8-11; May 7,1975, pp. 8-9), and accompanying exhibits.\\nThe concern for the finality of the adoption judgment is also reflective of the legislature's paramount interest in protecting the welfare of the child. The principal purpose of adoption proceedings is the promotion and protection of the child's best interests. P and P v. Children's Services Division, 66 Or App 66, 72, 673 P2d 864 (1983); F. v. C., 24 Or App 601; 609, 547 P2d 175, rev den, cert den 429 US 907 (1976); see also ORS 109.350. It is in the child's best interests for the adoption to proceed expeditiously and for the judgment to become virtually unassailable after it has been in effect for one year. P and P v. Children's Services Division, supra, 66 Or App at 72; see also ORS 109.381(3). Such procedural formalities help to achieve the important goals of \\\"providing stable homes for children and protecting existing family units.\\\" P and P v. Children's Services Division, supra, 66 Or App at 72. They also safeguard the adoptive parents' liberty interest in retaining custody of the child, which indirectly benefits the child because\\n\\\"adoptive parents may involuntarily inhibit the development of a strong bond of nurture and love with a child for fear that the child may be taken from them. That fear may deny the emotional support the child obviously needs.\\\" 66 Or App at 72.\\nWe conclude that, for respondent to have complied with the time requirement of ORS 109.096(8), he must have obtained a final judgment from the trial court regarding mother's alleged fraud within the one-year period. It is undisputed that the trial court's judgment was docketed well over a year after the adoption had become final. As a result, respondent's action to set aside the adoption judgment is barred.\\nRespondent argues that ORS 109.096(8) is not the only source of authority for setting aside an adoption judgment on the basis of fraud. He asserts that the court also has that authority under ORCP 71C, which provides, in relevant part:\\n\\\"This rule does not limit the power of a court to set aside a judgment for fraud upon the court.\\\"\\nORCP 71 is a general rule of procedure that deals with the court's power to set aside a judgment for fraud. ORS 109. 096(8) is a specific statute governing when a court may set aside an adoption judgment based on specific allegations of a petitioner's fraud in the adoption proceeding. Absent evidence of a contrary intent, the specific statute controls. State v. Vandepoll, 118 Or App 193, 198, 846 P2d 1174 (1993); State ex rel Woodel v. Wallace, 89 Or App 478, 481, 750 P2d 178, rev den 305 Or 467 (1988). We conclude, therefore, that ORS 109.096 is the only authority on which respondent may rely for setting aside the adoption based on mother's alleged fraud in the adoption proceeding. See State v. Vandepoll, supra, 118 Or App at 198; State ex rel Woodel v. Wallace, supra, 89 Or App at 481. To hold otherwise would render the absolute one-year deadline in ORS 109.096(8) a nullity and defeat the legislature's primary objective of promoting the child's best interests through an expedient and final adoption proceeding.\\nBecause of our determination on this assignment, we need not address the remaining assignments of error.\\nReversed.\\nRespondent spoke directly with mother in only four of the phone calls, the substance of which related only to the issue of paternity. Respondent's wife, however, made approximately ten phone calls to mother on his behalf. During several of those calls, she told mother that respondent would provide financial support for child if he was child's natural father. The offers of support made by respondent's wife on his behalf are sufficient to constitute offers of support made by respondent.\\nMother did submit to blood tests for herself and child, which determined respondent's paternity.\\nThe trial court determined that mother failed to inform the court that respondent had repeatedly tried to contribute to child's support within the meaning of ORS 109.096(l)(b).\\nORS 109.096 provides, in pertinent part:\\n\\\"(1) When the paternity of a child has not been established under ORS 109.070, the putative father shall be entitled to reasonable notice in adoption proceedings if the petitioner knows, or by the exercise of ordinary diligence should have known:\\n\\\"(a) That the child resided with the putative father at any time during the 60 days immediately preceding the initiation of the proceeding, or at any time since the child's birth if the child is less than 60 days old when the proceeding is initiated; or\\n' ' (b) That the putative father repeatedly has contributed or tried to contribute to the support of the child during the year immediately preceding the initiation of the proceeding, or during the period since the child's birth if the child is less than one year old when the proceeding is initiated.\\n\\\"(2) Except as provided in subsection (3) or (4) of this section, a verified statement of the mother of the child or of the petitioner, or an affidavit of another person with knowledge of the facts, filed in the proceeding and asserting that the child has not resided with the putative father, as provided in paragraph (a) of subsection (1) of this section, and that the putative father has not contributed or tried to contribute to the support of the child, as provided in paragraph (b) of subsection (1) of this section, shall be sufficient proof to enable the court to grant the court the relief sought without notice to the putative father.\\n\\\"(3) The putative father shall be entitled to reasonable notice in a proceeding for the adoption of the child if notice of the initiation of filiation proceedings as required by ORS 109.225 was on file with the Vital Statistics Unit of the Health Division of the Department of Human Resources prior to the child's being placed by an authorized agency in the physical custody of a person or persons for the purpose of adoption by them. If the notice of the initiation of filiation proceedings was not on file at the time of the placement, the father shall be barred from contesting the adoption proceeding.\\n\\\"(4) The putative father shall be entitled to reasonable notice in juvenile court or other court proceedings if notice of the initiation of filiation proceedings as required by ORS 109.225 was on file with the Vital Statistics Unit prior to the initiation of the juvenile court or other court proceedings.\\n\\\"(5) Notice under this section shall not be required to be given to a putative father who was a party to filiation proceedings under ORS 109.125 which either were dismissed or resulted in a finding that he was not the father of the child.\\\"\\nORS 109.381(3) provides, in pertinent part:\\n\\\"(3) After the expiration of one year from the entry of a decree of adoption in this state the validity of the adoption shall be binding on all persons, and it shall be conclusively presumed that the child's natural parents and all other persons who might claim to have any right to, or over the child, have abandoned him and consented to the entry of such decree of adoption, and that the child became the lawful child of the adoptive parents or parent at the time when the decree of adoption was rendered, after the expiration of such one-year period no one may question the validity of the adoption for any reason, either through collateral or direct proceedings, and all persons shall be bound thereby (Emphasis supplied.)\\nWe have recognized that this statute \\\"represents a basic legislative judgment that the stability in a child's environment outweighs other considerations in an adoptive situation.\\\" In re Walker/Pitman/Parris, 59 Or App 641, 645, 652 P2d 362 (1982). (Emphasis supplied.)\\nOur recent holding in Hiskey v. Hamilton, supra, is unaffected by our decision in this case. In Hiskey, the mother surrendered the child to an adoption agency, which placed the child in the custody of potential adoptive parents. Neither the mother nor the agency informed the putative father of the child's placement. However, unlike respondent, the putative father in Hiskey learned of the child's placement before formal adoption proceedings were initiated and, therefore, before the adoption became final. As a result, he was not confronted with the time restraint imposed by ORS 109.096(8).\\nAlthough respondent argued below that the adoption judgment should be set aside under ORCP 71, he does not refer to ORCP 71 anywhere in his brief. He does, however, contend that the judgment should be set aside based on mother's alleged fraudulent conduct, and we construe that as an argument under ORCP 71.\\nRespondent may also be arguing under ORCP 71B(l)(c), which provides, in pertinent part:\\n\\\"On motion and upon such terms as are just, the court may relieve a party from a judgment for the following reasons:\\n\\\"(c) fraud, misrepresentation, or other misconduct of an adverse party.\\\" (Emphasis supplied.)\\nPetitioners contend that this section of ORCP 71 is inapplicable, because respondent was not a \\\"party\\\" to the adoption proceedings. Because we conclude that ORCP 71 is not available to a person seeking relief from an adoption judgment, we do not decide whether a non-party mav move to set aside a judgment under ORCP 71B(l)(c) or ORCP 71C.\"}"
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diff --git a/or/4441032.json b/or/4441032.json
new file mode 100644
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--- /dev/null
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+"{\"id\": \"4441032\", \"name\": \"CEDAR LODGE LIMITED, a California limited partnership, dba Cedar Lodge Apartments, Respondent, v. Kathleen ELLIOTT, Appellant\", \"name_abbreviation\": \"Cedar Lodge Ltd. v. Elliott\", \"decision_date\": \"1992-10-21\", \"docket_number\": \"91F 737533; CA A71521\", \"first_page\": \"688\", \"last_page\": \"691\", \"citations\": \"115 Or. App. 688\", \"volume\": \"115\", \"reporter\": \"Oregon Reports, Court of Appeals\", \"court\": \"Oregon Court of Appeals\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T19:57:09.500969+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Buttler, Presiding Judge, and Rossman and De Muniz, Judges.\", \"parties\": \"CEDAR LODGE LIMITED, a California limited partnership, dba Cedar Lodge Apartments, Respondent, v. Kathleen ELLIOTT, Appellant.\", \"head_matter\": \"Argued and submitted March 16,\\ndenial of attorney fees remanded for reconsideration; otherwise affirmed October 21, 1992\\nCEDAR LODGE LIMITED, a California limited partnership, dba Cedar Lodge Apartments, Respondent, v. Kathleen ELLIOTT, Appellant.\\n(91F 737533; CA A71521)\\n839 P2d 757\\nCraig P. Colby, Portland, argued the cause for appellant. With him on the brief was Wall & Colby, Portland.\\nGlenn A. Leier, Portland, argued the cause for respondent. With him on the brief was McKeown & Brindle, P.C., Portland.\\nBefore Buttler, Presiding Judge, and Rossman and De Muniz, Judges.\\nDe MUNIZ, J.\", \"word_count\": \"537\", \"char_count\": \"3295\", \"text\": \"De MUNIZ, J.\\nDefendant, tenant, appeals the denial of her motion for attorney fees under ORS 90.255 in this residential FED proceeding. We reverse and remand.\\nPlaintiff served defendant with a 72-hour notice of intent to terminate the tenancy for nonpayment of rent. On May 13, it filed a complaint. On May 28, defendant filed an answer and counterclaim, alleging habitability violations that entitled her to a reduction of rent. On June 3, shortly before the start of trial, she paid the rent into court. She appeared for trial with her attorney and four witnesses. Plaintiffs non-attorney manager appeared without witnesses. The court, on its own motion, apparently concluding that plaintiff needed a lawyer, dismissed the action without prejudice. The judgment was signed on June 12. On July 16, plaintiff filed an FED proceeding against defendant after a second 72-hour notice of intent to terminate.\\nOn July 25, plaintiff filed objections to defendant's motion for attorney fees in the first proceeding. It argued that the case had been dismissed to allow it to be represented by counsel and to refile and that, because its second proceeding involved the same parties and the same dispute, defendant should not be the prevailing party in the first action. The court said that it did not view the two proceedings as separate and denied attorney fees and costs.\\nDefendant argues that this case is controlled by Gillespie v. Kononen, 106 Or App 657, 809 P2d 1351 (1991), in which we held that the tenant was the \\\"prevailing party\\\" for purposes of attorney fees in an FED proceeding which had been dismissed before trial. Plaintiff argues that the case is distinguishable, because the proceeding was dismissed on the motion of the plaintiff but, here, the proceeding was dismissed on the court's own motion.\\nPlaintiffs argument ignores that, irrespective of who moved for dismissal, a judgment was entered and the case was terminated. It argues, however, that neither it nor the trial court \\\"intended that the dismissal without prejudice would act as a final judgment.\\\" If no one intended that the action be brought to an end, it should not have been. A judgment was submitted, plaintiff did not object and the court signed it. The case was concluded, and defendant had prevailed. See Gillespie v. Kononen, supra.\\nUnder ORS 90.255, defendant is entitled to reasonable attorney fees. See Executive Mgt. Corp. v. Juckett, 274 Or 515, 547 P2d 603 (1976); West v. French, 51 Or App 143, 625 P2d 144 (1981). Because the court denied any award for attorney fees, it did not consider plaintiffs objections. We remand for it to do so.\\nDenial of attorney, fees remanded for reconsideration; otherwise affirmed.\"}"
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diff --git a/or/4445090.json b/or/4445090.json
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--- /dev/null
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+"{\"id\": \"4445090\", \"name\": \"Michael F. BANNISTER, Appellant, v. LONGVIEW FIBRE COMPANY, a foreign corporation, Respondent\", \"name_abbreviation\": \"Bannister v. Longview Fibre Co.\", \"decision_date\": \"1995-05-17\", \"docket_number\": \"9308-05120; CA A84906\", \"first_page\": \"332\", \"last_page\": \"337\", \"citations\": \"134 Or. App. 332\", \"volume\": \"134\", \"reporter\": \"Oregon Reports, Court of Appeals\", \"court\": \"Oregon Court of Appeals\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T22:48:58.308296+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Deits, Presiding Judge, and De Muniz and Hasel-ton, Judges.\", \"parties\": \"Michael F. BANNISTER, Appellant, v. LONGVIEW FIBRE COMPANY, a foreign corporation, Respondent.\", \"head_matter\": \"Argued and submitted March 31,\\naffirmed May 17, 1995\\nMichael F. BANNISTER, Appellant, v. LONGVIEW FIBRE COMPANY, a foreign corporation, Respondent.\\n(9308-05120; CA A84906)\\n894 P2d 1259\\nWilliam P. Horton argued the cause and filed the briefs for appellant.\\nCharles J. Pruitt argued the cause for respondent. With him on the brief were George L. Kirklin and Lane Powell Spears Lubersky.\\nBefore Deits, Presiding Judge, and De Muniz and Hasel-ton, Judges.\\nDEITS, P. J.\", \"word_count\": \"1239\", \"char_count\": \"7629\", \"text\": \"DEITS, P. J.\\nPlaintiff brought this action for breach of contract and a tort that he describes as breach of fiduciary duty, arising out of defendant's alleged termination of the contract under which plaintiff performed road construction and maintenance work on defendant's property in Oregon and Washington. The trial court granted partial summary judgment for defendant on the tort claim. Subsequently, after a hearing at the beginning of trial, he court concluded that plaintiffs failure to register with the Construction Contractors Board (Board) barred his contract claim, and judgment was entered for defendant. Plaintiff appeals, and we affirm.\\nORS 701.065 provides, as relevant:\\n\\\"[(1)] A contractor may not file a lien, file a claim with the board or bring or maintain in any court of this state a suit or action for compensation for the performance of any work or for the breach of any contract for work which is subject to this chapter, unless the contractor was:\\n\\\"(a) Registered under this chapter at the time the contractor bid or entered into the contract for performance of the work; and\\n\\\"(b) Registered continuously while performing the work for which compensation is sought.\\n\\\" (2) If the court determines that the contractor was not aware of the requirement that the contractor be registered, a court may choose not to apply subsection (1) of this section if the court finds that to do so would result in a substantial injustice to the unregistered contractor.\\\"\\nThe above version of the statute was enacted by Oregon Laws 1989, chapter 928, section 6, along with other amendments to ORS chapter 701, and took effect on July 1, 1989. The parties first contracted in 1985 for a term ending on October 31,1985. At annual intervals since that time, the parties entered into written amendments to their agreement that extended its term to October 31 of each succeeding year, until the parties' relationship ended in 1992. It is undisputed that (1) plaintiff is subject to the registration requirement of ORS chapter 701 under the current statute; (2) he was not among the types of contractors subject to the requirement under the version in effect in 1985; and (3) he has never registered in accordance with the statutory requirement. In holding that plaintiffs failure to register barred his contract claim, the trial court considered his testimony that he was unaware of the requirement, but concluded that plaintiffs noncompliance was the product of inexcusable neglect. Therefore, the savings provision in ORS 701.065(2) did not benefit plaintiff.\\nPlaintiff assigns error to the ruling that his contract claim is barred by ORS 701.065. He makes several arguments, some of which share the premise that, at the time he contracted with defendant in 1985, he was not required to register. He maintains that the 1989 amendment should not be applied to him retroactively. However, there is no question of retroactive application here. The contracts between the parties expired and extended agreements were formed at least twice between the effective date of the 1989 amendments to the statute and the time the parties' relationship ended. Plaintiff seeks no damages for any services that were performed under contracts that predated the effective date of the 1989 statute; indeed, he seeks no damages for any past services, because he has been paid for all services he provided, and the compensatory damages he seeks are wholly for lost future profits. Plaintiff has been subject to the registration requirement from the inception of each amended agreement consummated since July 1, 1989. Accordingly, we are not persuaded by plaintiffs retroactivity argument, nor by his other points that presuppose or depend on the notion that there is any issue in this appeal that involves any pre-1989 version of the statute or any pre-1989 contract.\\nPlaintiff argues next that, because he is seeking damages only for lost future profits and not for wages \\\"for work performed,\\\" the statute is inapplicable. He explains:\\n\\\"In substance, the statute states:\\n\\\"[Plaintiff] may not bring or maintain a suit or action for the breach of any contract unless [plaintiff] was registered continuously (1) while performing the work (2) for which compensation is sought.\\\" (Emphasis plaintiffs.)\\nHowever, that is not what the statute provides. The registration requirement attaches \\\"at the time the contractor bid or entered into the contract for performance of the work\\\" and continues throughout the time of performance of the work for which compensation is sought. Plaintiffs summary omits the part of the statute that relates to his circumstances and bars his claim. More fundamentally, the statute prohibits the maintenance of an action by an unregistered contractor \\\"for compensation for the performance of any work\\\" of the kind to which ORS chapter 701 applies. Nothing in that language supports a distinction based on whether the work was performed in the past or is to be performed in the future.\\nPlaintiff also argues that the statute does not apply to him because there was evidence that he did not \\\"qualify as an independent contractor, under ORS 670.600,\\\" which ORS 701.035 requires as a precondition to registration. Assuming without comment the correctness of the legal premise that underlies that contention, we reject it, because there was evidence to support the inference that plaintiff was an independent contractor at all material times, and the evidence that he asserts could support a contrary inference does not. The trial court correctly held that ORS 701.065 precludes plaintiff from pursuing his contract claim.\\nPlaintiff also assigns error to the summary judgment on the tort claim. Although the trial court's ruling was based on different grounds, we conclude that that claim, too, is barred by ORS 701.065. Aside from punitive damages, the damages plaintiff seeks under the tort claim are identical to those sought through the contract claim. Moreover, the gravamen of both claims is defendant's alleged termination of the relationship. Plaintiff relies on Georgetown Realty v. The Home Ins. Co., 313 Or 97, 831 P2d 7 (1992), and similar cases, for the general proposition that a party may have claims in both contract and tort, where a factual predicate for both types of claims arises from a common transaction or events. However, the question here is not whether he has a stateable tort claim, but whether he may bring or maintain an action to recover on it. Like the contract claim, plaintiffs tort claim seeks \\\"compensation for the performance of work\\\" that is subject to ORS chapter 701 by a contractor who has not complied with its registration requirements. As we said in Roelle v. Griffin, 59 Or App 434, 437 n 2, 651 P2d 147 (1982), persons subject to the statute \\\"cannot avoid the prohibition contained in ORS 701.065 by the labels or legal theories they employ.\\\" We conclude that there was no error.\\nAffirmed.\\nWe state additional facts in our discussion of the issues to which they are relevant.\\nIf compensatory relief is not available, the claim for punitive damages, of course, adds nothing to the viability of the tort claim.\"}"
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+"{\"id\": \"4452957\", \"name\": \"STATE v. BRINKLEY\", \"name_abbreviation\": \"State v. Brinkley\", \"decision_date\": \"1909-11-15\", \"docket_number\": \"\", \"first_page\": \"134\", \"last_page\": \"143\", \"citations\": \"55 Or. 134\", \"volume\": \"55\", \"reporter\": \"Oregon Reports\", \"court\": \"Oregon Supreme Court\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T22:00:48.666707+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE v. BRINKLEY.\", \"head_matter\": \"Argued Nov. 1,\\ndecided Nov. 15,\\nrehearing denied Dec. 21, 1909.\\nSTATE v. BRINKLEY.\\n[104 Pac. 893; 105 Pac. 708.]\\nLarceny\\u2014Indictment\\u2014Sufficiency.\\n1. Under Section 709, B. & C. Comp., providing that the terms of a writing are presumed to have been used in their primary and general acceptation, and Section 1311, providing that, when a crime involves the taking of an animal, the indictment is sufficiently certain if it\\\" describes the animal by the common name of its class, an indictment charging the larceny of a \\u201ccalf\\u201d was sufficiently certain, and charged a felony under Section 1801, directed against the larceny of animals named.\\nLarceny\\u2014Indictment\\u2014Grand or Petit Larceny.\\n2. An allegation in an indictment for the larceny of a calf, made a felony by Section 1801, B. & C. Comp., of the value of the calf as $8, does not reduce the offense t\\u00f3 petit larceny.\\nAnimals\\u2014Brand and Earmark\\u2014Evidence of Ownership.\\n3. A brand and earmark recorded as provided by Sections 4201, 4204, B. & C. Comp., are prima facie evidence of the ownership of the animal on which found.\\nCriminal Law\\u2014Appeal\\u2014Presentation and Reservation of Error\\u2014 Sufficiency of Evidence.\\n4. Unless there is a total failure of proof, a motion to direct an acquittal in general terms will not bring up for review the question of the sufficiency of the proof, but the particulars in which the proof is insufficient must be specified.\\nLarceny\\u2014Evidence\\u2014Possession of Recently Stolen Property.\\n5. Possession of property recently stolen is a circumstance, if unexplained, or if the explanation is unreasonable or improbable, that may tend to show guilt, and from which the jury may find accused guilty, if with the other evidence it satisfies them beyond a reasonable doubt.\\nCriminal Law\\u2014Appeal\\u2014Presentation and Reservation of Grounds of Review\\u2014Exceptions.\\n6. Error assigned on the failure of the court to give an instruction cannot be considered where there was no request therefor nor exception taken to the action of the court in not giving it.\\nCriminal Law\\u2014Evidence\\u2014\\\"Confession.\\\"\\n7. A \\u201cconfession\\u201d by accused may be a naked statement that he is guilty of a crime, or it may be a full statement of the circumstances of the commission, including his part in it.\\nCriminal Law\\u2014Admissions\\u2014Corpus Delicti.\\nS. Statements of extraneous facts by accused, not involving guilt, even when his confession is inadmissible because not voluntary or for any other reason, may be received against him as evidence of such facts, and may be sufficient to prove the corpus delicti.\\nLarceny\\u2014Cattle Theft\\u2014Corpus Delicti\\u2014Evidence.\\n9. In a prosecution for cattle theft, evidence of defendant\\u2019s admissions held sufficient evidence of the corpus delicti to require submission of the case to the jury.\\nFrom Baker: William Smith, Judge.\\nThe defendant, Ira Brinkley, was convicted of the crime of larceny and from the judgment and sentence which followed, he appeals.\\nAffirmed.\\nFor appellant there was a brief over the names of Mr. Morton D. Clifford and Messrs. Olmsted & Strayer with oral arguments by Mr. Clifford and Mr. M. L. Olmsted.\\nFor the 'State there was a brief over the names of Mr. William S. Levens, District Attorney, Mr. W. G. Drowley, Mr. George J. Bentley and Mr. Andrew M. Crawford, Attorney General, with an oral argument by Mr. Levens.\", \"word_count\": \"3204\", \"char_count\": \"17981\", \"text\": \"MR. Justice Eakin\\ndelivered the opinion of the court.\\nThis is a criminal action, in which defendant was convicted of larceny of a calf. The indictment is in the usual form.\\n1. The first error urged by defendant is that the animal alleged to have been stolen is \\\"a calf,\\\" and that this is too indefinite, the word \\\"calf\\\" being applied to other things and animals as well as the offspring of the bovine family; but the latter is its primary application, and therefore must be so accepted, unless some other application appears to have been intended. Section 709, B. & C. Comp., provides that the terms of a writing are presumed to have been used in their primary and general acceptation, and Section 1311 provides that the indictment is sufficient in that respect if it describes the animal by the common name of its class, and therefore the indictment charges felony under- Section 1801,. B. & C. Comp.\\n2. The allegation of value of the calf at $8.00, does not reduce the offense to petit larceny. The effect of the holding in State v. Minnick, 54 Or. 86 (102 Pac. 605), and in State v. Hanlon, 32 Or. 95, 103 (48 Pac. 353), is only that the allegation of value, if less than $35, makes the indictment charging felony broad enough to include the lesser offense of petit larceny under Section 1418, B. & C. Comp.\\n3. The evidence of the State tended to show that on the morning of August 10, 1908, defendant took three sucking calves from three cows, one of which cows was marked with the brand and earmark of W. H. Boyce, and that evening he butchered the three calves, and the next morning sold and delivered them to Henry Fawcett, a butcher in Baker City, according to an arrangement made with him several days before. Defendant urges that none of the calves have been identified as belonging to Boyce, or that, if one of them was the property of Boyce, yet it is not shown which one. The brand of W. H. Boyce, described as a \\\"half circle A,\\\" and his earmark, were duly recorded, as provided by Sections 4201, 4204, B. & C. Comp., which make them prima facie evidence of the ownership of the cow; and, although Boyce never saw the calf and did not know whether the cow referred to had a calf, yet such want of knowledge on his part is not fatal to the State's case, if the cow was his and had a calf. Other witnesses may be competent to establish such facts. The owner of a cow owns also the offspring, and the proof of the appearance of the cow was proof tending to show that the cow had passed through the period of gestation and had a calf, and, although it was not shown which of the three calves killed was the calf of the Boyce cow, because no such specific description of them was given or was possible, yet defendant was only prosecuted for the larceny of the calf of the Boyce cow, which calf, the proof tended to show, was killed and sold by defendant, and this is a sufficient identification of the calf alleged to have been taken. The brand and mark upon the Boyce cow was shown by Boyce to be his brand and mark, and being recorded, as provided by law, was sufficient to establish the ownership of the cow. There was testimony by Steve Osborn identifying as the property of Boyce a red, dehorned cow, marked with. Boyce's brand and mars, which he saw in defendant's pasture, and which came to the fence, bawling and wanting out, her calf having been recently taken away, and her bag was full of milk. Wellman testified that he drove to defendant's pasture for him, a red moolley or dehorned cow, being one of the three cows whose calves defendant told him he had killed Also admissions of defendant made to other witnesses were proved to the effect that on August 10, 1908, he had killed the calf of the red moolley or dehorned cow, identified as the Boyce cow. The identity and ownership of the calf could only be established by the identity and ownership of the cow, and the evidence did tend to identify the calf as the property of Boyce.\\n4. The denial by the court of defendant's motion for a directed verdict interposed at the close of the State's testimony is urged by defendant as error. The motion, as disclosed by the record, is that the court \\\"direct a verdict of not guilty, for the reason that the State has wholly failed to prove a cause sufficient to be submitted to the jury.\\\" Under the holding in State v. Tamler, 19 Or. 528 (25 Pac. 71: 9 L. R. A. 853), which holds that, unless there is a total failure of proof, a motion for a directed verdict in general terms will not bring upon appeal the question of the insufficiency of the proof, the motion ought to specify the particulars in which it is claimed the evidence is insufficient. That question must be first called specifically to the attention of the lower court, and cannot be raised here for the first time. However, the insufficiency of the evidence relied on here is a failure to identify the animal, the larceny of which is charged. This, as we have already shown, is sufficiently established to be submitted to the jury, and the motion was properly denied. If there were any doubt or uncertainty as to the identity of the calf killed, it is removed by defendant's testimony, in which he states that on the morning of August 10, 1908, he purchased four cows and three calves from two strangers named Gibson, and the animals were turned into his pasture; that in the afternoon of that day he drove one of these cows and the three calves to his barn, and killed the three calves that evening; that the cow which he brought with the calves from the pasture was the red cow, branded, as he says, with \\\"a half circle A, or whatever Mr. Boyce claims,\\\" and that he brought that cow up to milk. He did not admit that one of the calves belonged to that cow, but he believed that it did. He refers to the fourth cow, mentioned as the \\\"3S cow,\\\" as being the dry cow\\n5. It was for the jury to determine whether the evidence established that defendant was in the possession of the calf recently after it was stolen, and whether his explanation of such possession was reasonable and consistent with innocence, and, if they found that the property was stolen and recently thereafter found in his possession, this would be a circumstance, if unexplained or the explanation unreasonable or improbable, they might consider as tending to show guilt, and from which they might find him guilty, if, taken in connection with all the evidence, it satisfies them beyond a reasonable doubt of his guilt. State v. Hale, 12 Or. 352 (7 Pac. 523) ; State v. Pomeroy, 30 Or. 16, 25 (46 Pac. 797); State v. Hodge, 50 N. H. 510. And as said in State v. Sally, 41 Or. 370 (70 Pac. 396), the weight and value of testimony upon these questions are exclusively for the jury.\\n6. The exceptions to instructions given by the court and to the refusal to give instructions requested are based largely upon the matters above considered, and are not well taken, and the instructions requested by defendant, so far as proper, are included in the instructions given. Defendant assigned as error the failure of the court to instruct the jury as to the effect of circumstantial evidence, but there was no request for such instruction nor exception taken to the action of the court in not giving it, and the question cannot be considered here. State v. Magers, 36 Or. 38 (58 Pac. 892) ; Smitson v. Southern Pac. Co., 37 Or. 74, 89 (60 Pac. 907). It is said in State v. Abrams, 11 Or. 172 (8 Pac. 328) : \\\"We have announced this principle before, and we now lay it down as a rule to which there can be no exceptions that no objection to proceedings in the court below can be heard in this court which is not based on alleged error in judicial action on the part of the lower court.\\\" In State v. Cody, 18 Or. 506 (23 Pac. 891: 24 Pac. 895), the majority of the court held that, without exception being taken thereto, the failure of the court to instruct the jury that the charge of felony included also a lesser offense is reversible error, but this case was expressly overruled in State v. Foot You, 24 Or. 61, 70 (32 Pac. 1031: 33 Pac. 537), and in State v. Reyner, 50 Or. 224, 231 (91 Pac. 301). As to the reason and necessity for exception to errors relied upon on appeal, see the exhaustive dissenting opinion of Mr. Justice Lord in State v. Cody, 18 Or. 534 (24 Pac. 895).\\nWe find no error in the proceedings of the lower court, and the judgment is affirmed. Affirmed.\\nDecided December 21, 1909.\\n[105 Pac. 708.]\"}"
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+"{\"id\": \"4453615\", \"name\": \"OLYMPIA BOTTLING WORKS v. OYLMPIA BREWING CO.\", \"name_abbreviation\": \"Olympia Bottling Works v. Oylmpia Brewing Co.\", \"decision_date\": \"1910-04-05\", \"docket_number\": \"\", \"first_page\": \"87\", \"last_page\": \"102\", \"citations\": \"56 Or. 87\", \"volume\": \"56\", \"reporter\": \"Oregon Reports\", \"court\": \"Oregon Supreme Court\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T20:38:35.058618+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"OLYMPIA BOTTLING WORKS v. OYLMPIA BREWING CO.\", \"head_matter\": \"Argued March 9,\\ndecided April 5, 1910.\\nOLYMPIA BOTTLING WORKS v. OYLMPIA BREWING CO.\\n[107 Pac. 969.]\\nContracts \\u2014 Option Agreement \\u2014 Mutuality.\\n1. An option agreement, executed on proper consideration, is not lacking in mutuality.\\nContracts \\u2014 Requisites\\u2014Definiteness.\\n2. Less particularity is required in the terms of an agreement to support an action for damages than for a suit for specific performance.\\nPrincipal and Agent \\u2014 Contract\\u2014Option Agreement \\u2014 Extension\\u2014 Requisites.\\n3. Where the right of an agent, for the exclusive sale of an article within a specified territory for a fixed period, to continue the agency for another fixed period formed an important part of the consideration for the fixed period, and the contract was fully executed, and the consideration thereby fully paid for the fixed period, more latitude should he allowed in determining whether the optional provision was sufficient than where the option was merely executory, or partly executory.\\nPrincipal and Agent \\u2014 Contract of Agency \\u2014 Option Agreement\\u2014 Definiteness.\\n4. A contract, making one the sole agent of a brewery for the sale of its beer in specified territory for five years, which stipulates that at the close of the five years the agent shall have the option of continuing the agency for another five years, subject to the revision of the prices of beer, not to exceed the prices ruling at that time, contains a sufficiently specific option to constitute an enforceable agreement, and the brewery must agree on a revision of the prices, on the agent electing to continue the agency; and, where it refuses to do so, it does so at its peril, and the matter must then he determined by the proof of the price ruling at the time.\\nPrincipal and Agent \\u2014 Contract of Agency \\u2014 Option Agreement\\u2014 Breach \\u2014 Right of Action.\\n5. Where a brewery, making one its sole agent for the sale of its beer in specified territory for five years, with the option of the agent to continue the agency for another five years, subject to a revision of the prices of beer, not to exceed the prices ruling at that time, refused to consent to a revision of the prices, on the agent giving notice of his election to continue the agreement under the option, and refused to recognize the rights of the agent; the agent, if unable to make such a showing as would entitle him to equitable relief, could sue for damages for breach of the option agreement.\\nContracts \\u2014 Construction.\\n6. Where a contract is susceptible of different interpretations, one or more of which would enable it to stand, and others which might vitiate it, the construction giving effect to all its parts, and sustaining the contract and carrying out the evident intent of the parties, will prevail.\\nPrincipal and Agent \\u2014 Contract of Agency \\u2014 Construction.\\n7. Where a brewery, making one its sole selling agent within described territory for a fixed period, with the option of the agent to continue the agency for another period, subject to a revision of the prices of beer, not to exceed the prices ruling at that time, received notice of the agent\\u2019s election to continue the agency, and then refused to consent to a revision, it was discretionary with the agent whether he would act on the assumption that the brewery was satisfied with the prices specified in the contract for the fixed period, or demand a change in conformity with the then ruling prices, for the effect of the option was to bind the parties to confer and make such revision of the prices as might be deemed advisable, or in the absence thereof that the ruling prices should prevail.\\nPrincipal and Agent \\u2014 Contract of Agency \\u2014 Option\\u2014Notice of Exercise.\\n8. Where a brewery, making one \\u00abits sole selling agent within described territory for a fixed period, with the option of the agent to continue the agency for another period, subject to a revision of the prices of beer, not to exceed the then ruling prices, refused to recognize the rights of the agent under the option, notwithstanding his election to continue the agency, the agent, giving notice of his election to continue 'the agency, was not required to notify the brewery of his intent to insist on the ruling prices.\\nEvidence \\u2014 Parol Evidence \\u2014 Latent Ambiguity.\\n9. A contract making one the sole selling agent of a brewery for a fixed period, with the option of the agent to continue the agency for another period, subject to the revision of prices of beer, not to exceed the prices ruling at that time, contains a latent ambiguity because the reference to the ruling prices may refer to the wholesale market prices, or to prices allowed to similar agencies, and parol evidence was admissible to show the intention of the parties.\\nFrom Multnomah: John B. Cleland, Judge.\\nStatement by Mr. Justice King.\\nPlaintiff by this action demands $45,000 damages for-an alleged breach of a written contract, entered into January 25, 1902, by and between the defendant, the Capital Brewing Company of Olympia, Washington (sub sequently changed to the Olympia. Brewing Company), as party of the first part, and the plaintiff, the Olympia Bottling Works, ,as party of the second part, wherein the latter was made the sole agent of the first party for the sale of beer brewed by it in Oregon and the southern part of Washington, the period of which agency was fixed at five years, with the privilege granted to the second party of extending it in a qualified form for an additional term of the same length. The contract provided in detail for the manner of conducting the business, the price of beer per keg, barrel, and other quantities in which to be sold, etc., including the manner of delivery, expense thereof, and other matters pertaining to the conduct of the business for the company. The clause of the contract, giving rise to this controversy, reads:\\n\\u201cAt the close of the five-year period covered hereby, the second party shall have the option of continuing this agency for another five years, but the prices of beer shall be revised, but not to exceed the prices ruling at that time. This agreement to take effect on the first day of March, 1902.\\u201d\\nOn March 1, 1902, the date when, by the terms of the agreement it became effective, the parties entered upon the performance of the conditions of the contract, and continued operation thereunder until March 1, 1907, but from time to time modified the terms of the agency, respecting the price of beer, supplies to be furnished, and other details incidental to the business. The defendant company, about three months prior to the expiration of the first five-year period, notified plaintiff in writing to the effect that after March first of that year the business relations between plaintiff and defendant must cease. A few days later plaintiff wrote defendant, in part, as follows:\\n\\u201cThe contract gives to ourselves, the party of the second part, the option of continuing this agency for another five years, but the price of beer shall be revised, but not to exceed the prices ruling at that time. We now formally notify you that we desire, in the exercise of our option, to continue the agency under the contract for the additional five years, and we are ready at any time that suits your convenience to discuss with you and agree upon such revision of prices as the contract contemplates. After five years of labor expended and money invested in contemplation of future rights, and after incurring obligations for the extended continuance in large amounts with your knowledge and .approval, we cannot consent to this arbitrary repudiation of the contract on your part, resulting, as it would, in destroying in a moment, as far as we are concerned, the business we have built up and fostered.\\u201d\\nAn extended correspondence followed between the parties, in which each accused the other of unfair business dealings; the defendant, among other things, informing plaintiff: \\u201cThe contract you refer to, and under which you claim, is null and void, and terminated a year ago by your own request and full knowledge.\\u201d On and after March 1, 1907, beer orders were given defendant as formerly, which orders defendant declined in any manner to recognize, resulting in this action. At the trial plaintiff offered to prove a full compliance on its part with the terms of the option, including the giving of notice to defendant of its intent to exercise the option, all of which was excluded by .the court. No testimony was offered on behalf of defendant, and on request of its counsel a verdict was directed in its favor; hence this .appeal.\\nReversed.\\nFor appellant there was a brief over the names of Messrs. Bernstein & Cohen, with an oral argument by Mr. Alex Bernstein.\\nFor respondent there was a brief over the names of Mr. Martin L. Pipes and Mr. Samuel B. Huston, with a.n oral argument by Mr. Pipes.\", \"word_count\": \"5397\", \"char_count\": \"30946\", \"text\": \"Mr. Justice King\\ndelivered the opinion of the court.\"}"
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+"{\"id\": \"4459711\", \"name\": \"ANDERSON v. MIAMI LUMBER CO.\", \"name_abbreviation\": \"Anderson v. Miami Lumber Co.\", \"decision_date\": \"1911-06-13\", \"docket_number\": \"\", \"first_page\": \"149\", \"last_page\": \"160\", \"citations\": \"59 Or. 149\", \"volume\": \"59\", \"reporter\": \"Oregon Reports\", \"court\": \"Oregon Supreme Court\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T23:14:40.697956+00:00\", \"provenance\": \"CAP\", \"judges\": \"Mr. Justice Burnett took no part in this decision.\", \"parties\": \"ANDERSON v. MIAMI LUMBER CO.\", \"head_matter\": \"Argued June 6,\\ndecided June 13, 1911.\\nANDERSON v. MIAMI LUMBER CO.\\n[116 Pac. 1056.]\\nLogs and Logging \\u2014 -Transfer of Timber \\u2014 Estate Upon Condition.\\n1. Plaintiffs transferred to defendant\\u2019s predecessor all the timber upon a \\u25a0 tract of land, by a deed which provided that the grantee should remove such timber within five years, and that the title to all timber not so removed, and remaining on said premises at the expiration of said five years shall revert to the grantors. Subsequently the time for the removal was extended for two years. Held, that the title to all the timber on the tract vested in defendant\\u2019s predecessor, but that it was an estate upon condition liable to be defeated on failure of the grantee to remove within the time specified, and that the grantors, on the expiration of the extended time, became owners \\u25a0 of the timber, including trees that were cut down and not removed from the tracts, together with those that were cut down and cut into sawlogs, and which remained upon the tract\\nLogs and Logging \\u2014 Conveyance of Trees.\\n2. A conveyance of growing trees upon the land conveys the interest in the land of which they are a part, so that an individual conveyance of growing trees without the land does not instantaneously sever the trees from the land in contemplation of law, and transform them into personal property.\\nWords and Phrases \\u2014 \\\"Timber.\\\"\\n3. The term \\u201ctimber\\u201d as commonly used in this- country, signifies either growing trees, or large sticks, and is not commonly applied to small pieces or rails or cordwood into which the larger pieces may be worked up.\\nInjunction \\u2014 Removal op Timber.\\n4. Where defendants under a contract for the sale of the timber on certain tracts, to be removed before a certain date, or become the property of the grantor, proceed to remove timber from the land after that date, injunction will lie to prevent its removal, as equity will interfere to prevent a continuous trespass or repeated trespasses.\\nFrom Tillamook: George H. Burnett, Judge.\\nStatement by Mr. Justice McBride.\\nThis is a suit by Lillie R. Anderson and S. V. Anderson, plaintiffs, against the Miami Lumber Company, a corporation, defendant-appellant herein, L. A. Ganahl and W. T. Botsford, doing business under the firm name of Ganahl & Company, A. L. Jones, Rollie Watson and Fred Wheeler, defendants. The facts as disclosed at the trial are as follows:\\nOn May 10, 1902, plaintiffs conveyed to the Hadley Lumber Company, the predecessor in interest of the Miami Lumber Company, by warranty deed, all the timber situated upon the tract of land lying adjacent to the Trask River in Tillamook County. The deed contained this proviso:\\n\\u201cProvided, further, that the grantee herein, or their successors or assigns, shall remove such timber from such premises within five years from the date of this instrument, and that the title to all timber not so removed and remaining on said premises at the expiration of said period of five years, shall revert to and become vested absolutely in the grantors herein.\\u201d\\nSubsequently, upon the payment of an adequate consideration, the time for the removal of the timber was extended for two years. The contract expired by its terms on May 10, 1909. A short time prior to the latter date the defendants, by their contractors, Jones, Watson & Wheeler, cut down about 1,400 trees, a part of which they cut into sawlogs, and marked the remainder to be manufactured into logs; and after the 10th day of May, 1909, they were proceeding to saw and put into the river, as sawlogs, the trees so felled until the work was stopped by an injunction issued in this case. Plaintiffs brought this suit to enjoin them from removing the trees or trespassing upon the land. Defendants Ganahl and Botsford answered, disclaiming any interest in the subject-matter or any action on their part adverse to plaintiffs\\u2019 interest. Jones, Watson & Wheeler answered, alleging that they were contractors under the Miami Lumber Company and that company answered, setting out the deed from plaintiffs to the Hadley Lumber Company and the subsequent extension of time, claiming that the felling of the trees within the life of the contract constituted a \\u201cremoval of the timber from the premises\\u201d within the meaning of the contract. The court found against the defendants, the Miami Lumber Company and Jones, Watson & Wheeler, and dismissed the suit as to Ganahl and Botsford. The Miami Lumber Company appeals.\\nAffirmed.\\nFor appellant there was a brief over the names of Messrs. Talmage & Johnson, with an oral argument by Mr. C. W. Talmage.\\nFor respondents there was a brief with oral arguments by Mr. Ralph R. Duniway and Mr. A. W. Severance.\", \"word_count\": \"4110\", \"char_count\": \"23253\", \"text\": \"Mr. Justice McBride\\ndelivered the opinion of the court.\\nAppellant's contention in this case has been very ably and ingeniously presented, but we are unable to concede that it is sound. We agree with appellant's counsel that the present title to all the timber on the tract vested in appellant's predecessor in interest, but it was an estate upon condition liable to be defeated upon failure of the grantee to remove the timber within the time specified.\\nThe language in the deed \\\"provided that the grantee herein or their successors and assigns shall remove such timber from said premises within five years from the date of this instrument\\\" would of itself make the deed conditional. Oregon Railroad & Nav. Co. v. McDonald, 58 Or. 228 (112 Pac. 413). But in addition to this there is a clause providing that \\\"the title to all timber not so removed and remaining on said premises at the expiration of said period of five years shall revert to and become vested absolutely in the grantors herein.\\\" Now, it is conceded that the trees in question were not, in fact, removed from the premises; that a large part of them remained upon the ground in the shape of felled trees, marked for sawing; and that a small quantity were cut already into sawlogs. It is claimed that the cutting of these trees and severing them from the soil constituted a technical \\\"removal from the premises,\\\" and that the defendants had a reasonable time after the expiration of the grant to actually remove them. The very statement of the proposition involves a contradiction. If the timber was removed by the act of cutting, then it was removed and no further act was required. To say that it was removed as a matter of law, and that defendants had a right to enter upon the premises, after the expiration of the time limit set in the deed, and thereafter to remove it, as a matter of fact involves a degree of legal metaphysics which we are unable to attain. If trees, which have been cut down and which lie undisturbed at the foot of the stumps, are timber, or if the same trees, which have been cut into sawlogs and which are left lying where they fell, are timber, then it follows from a necessary, usual, and common-sense definition of the term \\\"removal from the premises\\\" that they could not be, in a legal sense, removed, while they were, in fact, remaining physically on the premises. However, as defendant's counsel have cited authorities which they claim establish an opposite view to that above indicated, we will discuss those which we consider as most strongly tending to support defendant's contention.\\nIn Hoit v. Stratton Mills, 54 N. H. 109 (20 Am. Rep. 119), the grantor conveyed the timber on her land to the grantee by deed, agreeing to deliver it to him at a place, not on the land, at a certain time. There was a further agreement that, if she did not deliver it at the time and place mentioned, the grantee might enter and remove it. She failed to keep her agreement to deliver, and after several years had elapsed the grantee entered and removed the timber. The assignee of the grantor brought an action for trespass for the removal, and it was held that, in the absence of any stipulation to the contrary, the grantee was to be presumed to have a reasonable time within which to remove the timber, but that it could not be presumed that it was intended that he should be allowed to let it stand at his pleasure; that the grantee, having entered after a reasonable time had expired, was liable for trespass for the unlawful entry, but, there having been an absolute sale to him of the timber, he was not liable for its value. In other words, that he, having unlawfully entered to reclaim his own, was liable in damages for the unlawful entry, but not for the value of his own property, which he had removed. This case differs from the one at bar in this: (1) That no time was fixed within which the grantee might enter and remove the property; (2) that there was no clause in the deed providing for a reversion of the estate in case of the grantee's failure to remove the timber within a fixed or a reasonable time. The court lays stress upon the absence of these two provisions, saying: \\\"The deed, in terms, says nothing about a reasonable time, and nothing about a condition of removal within a reasonable time,\\\" and it might well have added, \\\"and nothing about a reversion in case of failure to remove within a reasonable time.\\\"\\nIn addition to this the court held, following a rule peculiar to New Hampshire and a very few other states, but not recognized in this State or in the majority of states, that \\\"an unconditional conveyance of growing trees without the land, instantaneously severs them from the land in contemplation of law, and transforms them into personal property\\\"; the rule in this State being that a conveyance of growing trees upon the land conveys an interest in the land of which they are a part.\\nIn Magnetic Ore Co. v. Marbury, 104 Ala. 465 (16 South. 632: 27 L. R. A. 434: 53 Am. St. Rep. 73), it is held that an absolute conveyance of saw timber growing on land, without condition or limitation as to time of removal, vested the title to the timber absolutely in the grantee forever. This is good law probably, but has no application to a case like the present one when there is a definite time fixed for removal of the timber and a definite reverter in case of nonremoval.\\nThe case last cited differs from the New Hampshire case in apparently ignoring the theory that a \\\"reasonable time\\\" within which to remove timber is implied where no time is mentioned and in holding that the grantee in such a deed is never a trespasser in entering to remove his property.\\nHalstead v. Jessup, 150 Ind. 85 (49 N. E. 821), was a case of absolute sale of timber with \\\"four years to take off said timber.\\\" It was held that, in the absence of a forfeiture clause, the purchaser was entitled to take the timber after four years, but would be liable for damages. This case is easily distinguished from the case at bar by the absence of a forfeiture clause in the contract which is so conspicuous and clear in the present case, but we may remark in passing that if the learned court means to be understood as holding that a man may commit a trespass to take away timber, after the time limit provided in the deed has expired, it asserts a very novel proposition of law. The proposition that one may lawfully commit an illegal act in order to acquire his property, and that the courts will protect him in equity in so doing, but subject him to damages at law for the same act, involves a confusion of ideas. The reluctance which all courts display to enforce a forfeiture is responsible for much doubtful law in cases of this kind.\\nMee v. Benedict, 98 Mich. 260 (57 N. W. 175: 22 L. R. A. 641: 39 Am. St. Rep. 543), holds that a conveyance of timber with license to remove, within a term of years with reverter to the grantor, of timber not removed within that time, vested title to the timber in the grantee. This is in accord with our own view of this case. There is no doubt that the title to the timber embraced in the deed in the case at bar vested in the grantee, but subject to be divested by noncompliance with the condition providing for its removal. The question of noncompliance with the condition was not involved in the Michigan case above cited.\\nHubbard v. Burton, 75 Mo. 65, involved a conveyance of timber to be removed within 12 months. It was held that the word \\\"timber\\\" meant trees standing, felled, or lying in their natural state on the land, and did not include railroad ties. The term \\\"timber,\\\" as commonly used in this country, signifies either growing trees or large sticks, and is not commonly applied to smaller pieces or rails or cordwood into which the larger pieces may be worked up.\\nGolden v. Glock, 57 Wis. 118 (15 N. W. 12: 46 Am. Rep. 32), applies this rule to stave bolts, while Hicks v. Smith, 77 Wis. 146 (46 N. W. 133), applies the same doctrine to sawlogs, but in this case there was no condition or reversion clause in the deed, which distinguishes it from the case at bar, and as the case stands we cannot agree with the reasoning of the learned court, and decline to hold that a tree or log left lying upon the land is in a legal sense removed from the land.\\nThese are not all the cases cited by counsel for defendants, but they are typical of all, and they fail to convince us of the correctness of defendants' contention. On the other hand, it was held in Pease v. Gibson, 6 Greenl. (Me.) 81, where an owner of land sold all the pine trees on a tract, the purchaser to have two years to take off the timber, that this was only a sale of what the purchaser could take off in two years. It will be noticed in this case that there was no reversion clause in the conveyance. To the same effect is Howard v. Lincoln, 13 Me. 122.\\nIn Webber v. Proctor, 89 Me. 404 (36 Atl. 631), where a grantor conveyed trees and hemlock bark and a tract of land \\\"with the right to enter upon said lot of land at any and all times during the term of 10 years to cut any trees and make necessary roads, to remove said hemlock bark and hemlock trees or logs from the land during the term aforesaid without being liable for trespass.\\\" If it was held that this amounted only to a grant of such trees and bark as should be cut and removed within the term, the court saying, 'to admit the construction given by the defendant's counsel, and consider such a permission as a sale of the trees, to be cut and carried away at the good pleasure of the purchaser, and without any reference to the limitation, in point of time, specified in the permit, would be highly injurious in its consequences. It would deprive the owner of the land of the privilege of cultivating it and rendering it productive, thus occasioning public inconvenience and injury, and, in fact, it would amount to an indefinite permission.' \\\"\\nIn the case at bar it appears that the river bottom across which logs must be transported to get them to market is composed of a productive soil, the occupation of which by defendants for logging operations would materially interfere with its improvement and cultivation.\\nIn McIntyre v. Barnard, 1 Sandf. Ch. (N. Y.) 52, which is a well-considered and instructive case, the deed conveyed to the grantees \\\"all the pine timber standing or being on the premises together with the right of entering upon the land until January 1, 1841, to cut and remove said timber.\\\" The vice chancellor said:\\n\\\"It is admitted that, if this clause has not been inserted, a right of entry would have passed by the instrument, commensurate with the removal of all the timber. Why, then, was it inserted ? The parties could not have designed to subject the grantees to actions of trespass, in removing their own' property from the premises. The complainant could not have stipulated for such an absurd proposition, nor the grantees have assented to it. Nor is it credible that the parties expected the whole of the pine logs, 75,000 in number, to be removed by January, 1841. The conclusion most satisfactory to me is that the clause in question was designed to limit the whole grant; and that the object of the grant was the sale of all the pine logs which should be taken off by January, 1841, and nothing beyond that. The complainant's agent, doubtless, supposing it to be impracticable for the grantees to remove one quarter of the timber within the stipulated period, and the grantees, relying upon their own diligence and exertions to get off all that they could, and thus enhance the profit of the enterprise.\\\"\\nThe court in this case enjoined the defendants from cutting more timber or removing that \\u00e1lready cut, and the case is not only an authority in favor of the principal contention of plaintiffs, but also sustains the subsidiary one that equity will interfere to prevent the continuous and repeated trespasses involved in an attempt to unlawfully carry on protracted logging operations over the land of another.\\nAllen & Nelson Mill Co. v. Vaughn, 57 Wash. 163 (106 Pac. 622), is a case exactly in line with plaintiff's contention here, and, coming from the court of an adjoining state where conditions are the same as here, it is of great value. In the above case there was an absolute conveyance of the timber on a certain tract of land for a consideration of $2,000, with this condition:\\n\\\"It is further agreed that said parties of the second part shall have three years from \\u00e1nd after the date hereof within which to remove said timber.\\\"\\nThere was no reversion or forfeiture clause of any kind. The purchasers did just as the defendants in this case; they cut down the standing trees before the expira tion of the time limit, and claimed the right to remove them afterwards. The plaintiffs who were successors to the title of the original grantors brought suit to enjoin the unlawful cutting and removal of the timber, and the lower court held, as the defendants in this case now contend, that the purchaser had no right to cut timber after the expiration of the time limit fixed in the deed, but that they had a right to remove timber which was lying on the ground, and which had been cut before the three years had elapsed. The Supreme Court, in an opinion which seems to the writer unanswerable in its reasoning reversed the lower court, and held that the right of removal terminated with the expiration of the time limit. We quote from the opinion the following:\\n\\\"Our own view is that this contract should be construed as any other contract for the purpose of ascertaining what was intended by the contracting parties, and in so construing it we conclude that it was the intention of the parties that the purchaser should have the three years specified for a removal of the timber whether standing or lying down, and that at the expiration of that time his interest in the timber should cease, and that the title to the timber would then.be in the person owning the land. What possible interest would the seller have in the date when the timber should be cut down, if there was to be no limit on the time of its removal from the land ? That would be a matter which would be of interest only to the buyer, and concerning which he would not be likely to counsel or contract with the seller. In many of the contracts which have been construed by the courts the language is 'cut and remove,' but it is evident that the main consideration, even in those cases, is the removal. Just how the removal is to be effected is not of interest to the seller. The great desideratum to him is the recovery of the possession of his land at the time specified. A man might reasonably be willing to sell timber on land at a certain price if the unobstructed possession of the land were assured to him in three years, when he would demand a greater price, or perhaps refuse to sell at all, if he could not regain the premises for five years or for some longer period. He is not in any way benefited by cutting the timber down and cumbering the ground with fallen trees. So far as his use of the ground is concerned the trees had better be left standing. Many of the cases are also based upon the conclusion that a provision of this kind is a covenant rather than a forfeiture, but this is dealing with definitions rather than principles, for the carrying out of covenants sometimes necessarily works as a forfeiture. Neither is it profitable to enter into a discussion of technical distinctions between real estate and personal property. Such distinctions tend to lead away from the essential idea, viz., what was the intention of the parties to the contract under consideration. All these technical questions have been determined by this court in Lehtonen v. Marysville & Power Co. 50 Wash. 359 (97 Pac. 292). There it was said: 'Whether the reservation of the timber made it, in legal effect, personal property or otherwise, makes no difference. It is material what the theoretical character becomes. The contract of reservation provides that it shall be removed within a given time. If it was the intention of the parties that the timber might be removed after that time, the limitation means nothing, and was misleading.' Certainly the respondent cannot escape the important provision providing the time within which he is permitted to remove the timber. He knew that, under the plain provisions of his contract\\u2014 and it is difficult to see how it could be made plainer \\u2014 he had three years from the date of the contract in which to remove the timber. His action in cutting more timber than he could or would remove in that time was an evasion of both the letter and spirit of his contract, and he must suffer the consequences of his own failure to comply with the contract. This construction also does away with the illogical holding of some of the courts that, notwithstanding the fact that the contract must be construed as preventing the removal within the time specified, yet the purchaser has a right to the property even though asserting dominion over the property places him in the role of a trespasser.\\\"\\nWe have quoted thus at length from the foregoing opinion because it comes from- the court of a state where logging is one of the great industries, and because it answers so completely every contention made by defendants in the case at bar. It is common knowledge that tnere are many contracts of the character of the one here in litigation now in existence in this State, and in view of the future importance of the logging industry many more such contracts will be entered into. Realizing, therefore, the importance of this case in the bearing that it may have upon present and future contracts of the same character we have devoted more than usual time and space to its discussion, to the end that hereafter parties to such contracts may fully comprehend their import and the respective rights and obligations arising therefrom.\\nThere remains but one more question to be disposed of, namely, the objection that equity will not interfere in cases of this character, but will leave the plaintiff to his remedy at law. That equity will interfere to prevent a continuous trespass or repeated trespasses involving a multiplicity of suits is elementary. Its jurisdiction has been invoked in many of the cases of this character cited in this opinion, and is upheld in Roots v. Boring Junction Lumber Co., 50 Or. 298 (92 Pac. 811: 94 Pac. 182).\\nThe decree of the circuit court is affirmed.\\nAffirmed.\\nMr. Justice Burnett took no part in this decision.\"}"
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+"{\"id\": \"4463270\", \"name\": \"STATE ex rel. v. PORT OF TILLAMOOK\", \"name_abbreviation\": \"State v. Port of Tillamook\", \"decision_date\": \"1912-06-18\", \"docket_number\": \"\", \"first_page\": \"332\", \"last_page\": \"344\", \"citations\": \"62 Or. 332\", \"volume\": \"62\", \"reporter\": \"Oregon Reports\", \"court\": \"Oregon Supreme Court\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T23:37:22.731436+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE ex rel. v. PORT OF TILLAMOOK.\", \"head_matter\": \"Argued June 4,\\ndecided June 18,\\nrehearing denied July 30, 1912.\\nSTATE ex rel. v. PORT OF TILLAMOOK.\\n[124 Pac. 637.]\\nQuo Warranto \\u2014 Statutes\\u2014Effect.\\n1. While Section 363, L. O. L., abolishes the writ of quo warranto, the jurisdiction and power of the courts was not changed, only the form being abrogated, and the same relief is obtainable by the action provided for by section 366, providing for an action whenever any person shall intrude into, or unlawfully hold, any public office, or when any association or number of persons shall act as a corporation without being incorporated.\\nQuo Warranto \\u2014 Burden of Proof.\\n2. While, in ordinary civil actions, the burden rests on plaintiff to prove and allege his title to the thing in controversy, the rule is reversed in quo warranto proceedings, and a defendant claiming to act under a public franchise has the burden of showing a franchise.\\nElections \\u2014 Notice\\u2014Conditions Precedent.\\n3. Where a statute requires notice of a special election such notice is a condition precedent to the validity of the election.\\nElections \\u2014 Notice\\u2014Returns.\\n4. The posting of election notices is not required to be made a matter of record.\\nEvidence \\u2014 Presumptions.\\n5. Where the posting of election notices is not required to be made matter of record it is presumed in the absence of proof to the contrary that such notices were properly posted. Section 799, subd. 15, L. O. L., making it a disputable presumption that official duty has been regularly performed, and section 797 providing that a disputable presumption, unless overcome, is conclusive.\\nMunicipal Corporations \\u2014 Powers.\\n6. While municipal corporations are capable of adopting and amending their charter, they are agencies of the State, and have only those powers incident and germane to the municipal government.\\nMunicipal Corporations \\u2014 Boundaries\\u2014Extensions\\u2014\\u201cLocal Legislation'-\\u2019 \\u2014 \\u201cSpecial Legislation.\\\"\\n7. Article XI, Section 2, Constitution of Oregon, grants to the legal voters of every city and town power to enact and amend their municipal charter, and Article IV, Section la, provides that the initiative and referendum powers reserved to the people are further reserved to legal voters of every district as to all local, special, and municipal legislation. Held that, as the words \\u201clocal\\u201d and \\u201cspecial\\u201d mean enactments intended only to affect certain persons who operate in specified localities, an incorporated port cannot under a special election had under such powers extend its boundaries by annexing other territory without the consent of the inhabitants of the territory annexed, this being particularly true in view of Section 3209, L. O. L\\u201e. and Laws of 1911, p. 158, \\u00a7 3, both of which provide for the annexation of new territory to municipalities and ports only with the consent of the inhabitants of the territory to be annexed.\\nQuo Warranto \\u2014 Subjects op Protection.-\\n8. The validity of an attempted annexation of territory to a municipality is properly tested by quo warranto.\\nQuo Warranto \\u2014 Estoppel\\u2014Laches.\\n9. In the absence of any statutory period of limitation, an action in the nature of quo warranto in behalf of the people may be commenced at any time, lapse of time not working a bar by way of limitation or estoppel because it does not run against a sovereign.\\nAppeal and Error \\u2014 Determination.\\n10. Under the direct provisions of Article VII, Section 3, Constitution of Oregon, as amended by Laws 1911, p. 7, the Supreme Court will, where all the evidence is in the record, render the judgment which should have been rendered below.\\nFrom Tillamook: Henry L. Benson, Judge.\\nStatement by Mr. Justice Bean.\\nThis is an action in the nature of quo warranto, brought by the State upon the relation of S. V. Anderson and Lillian Anderson against H. T. Botts, A. G. Beals, D. Fitzpatrick, James Walton, Jr., M. F. Leach, and the Port of Tillamook, to determine the right of the defendants to act as a municipal corporation. From a judgment in favor of defendants, plaintiff appeals. The complaint is signed by the district attorney of the proper district. It alleges that the defendants are unlawfully exercising a public office and franchise within the State of Oregon, as officers of the Port of Tillamook, without the same being duly incorporated; that the alleged port is a quasi municipal corporation, attempted to be formed under the act of 1909 (Laws of Oregon, 1909, pp. 78-88) ; that the relators are residents and taxpayers within the territory of the pretended port; and that the defendants, as officers of such corporation, are attempting to issue a large amount of bonds and render the relators liable for the payment of a part thereof. The complaint avers in detail that the corporation and the acts of the defendants are illegal for the following reasons: (1) That the original Port of Tillamook was created by, and organized under, an act of the legislative assembly approved February 21, 1899 (Laws of Oregon 1899, pp. 419-423), and has ever since existed as a quasi municipal corporation; that it embraced all of the corporate limits of the City of Tillamook, and 50 feet on each bank of Hoquarton Slough from the east boundary of the city westward to and including Dry Stocking Bar; that the attempt to reincorporate the Port of Tillamook is void, because the proceedings therefor under the provisions of Chapter 39, Laws of 1909 (Sections 6114 et seq. L. O. L.), by petition to the county court, and by an election held pursuant thereto, embraced the same territory as that included in the former port, together with a large additional area; (2) that no notice of the election for the incorporation of the present Port of Tillamook was published as required by law.\\nThe defendants, in their answer, set up the proceedings under the act of 1909 for the organization of the port, and denied the other allegations of the complaint.\\nThe reply put in issue the new matter contained in the answer. Upon the trial of the cause in the circuit court it was agreed that the burden of proof was upon the defendants, who introduced evidence, but produced none showing that notices of the election had been issued or posted. Plaintiff alleges that because of a failure to give notice of the special' election a large number of legal voters, who were opposed to such proceedings, were prevented from voting, and that the result was thereby changed. \\u25a0\\nReversed.\\nFor appellants there was a brief over the names of Mr. Ralph R. Duniway and Mr. John H. McNary, District Attorney, with an oral argument by Mr. Duniway.\\nFor respondents there was a brief and an oral argument by Mr. H. T. Botts.\", \"word_count\": \"4277\", \"char_count\": \"24489\", \"text\": \"Mr. Justice Bean\\ndelivered the opinion of the court.\\nThe principal contentions on the part of plaintiff are (1) that there was no authority of law for organizing or reorganizing the present Port of Tillamook, and at the same time extending the boundaries thereof, so as to include territory outside the limits of the port as created by the act of 1899; (2) that in the attempt to organize or reorganize the Port of Tillamook the defendants did not show that they complied with the statutory requirement as to notices.\\nIt is enacted by Section 366, L. O. L., that \\\"An action at law may be maintained in the name of the State, upon the information of the prosecuting attorney, or upon the relation of a private party against the person offending, in the following cases: (1) When any person shall usurp, intrude into, or unlawfully hold, or exercise any public office, civil or military, or any franchise within this State, or any office in a corporation either public or private, created or formed by or under the authority of this State; or, (2) ; (3) when any association or number of persons act within this State, as a corporation, without being duly incorporated.\\\" By Section 363, L. O. L., the writ of quo warranto is abolished. It is, however, only the form that is abrogated by this section. The jurisdiction and power of the courts are not changed. The remedies heretofore obtainable under those forms may be obtained by an action at law. State ex rel. v. Cook, 39 Or. 377 (65 Pac. 89) ; State ex rel. Sheridan v. Millis, 61 Or. 245 (119 Pac. 763). For an elaborate discussion of an action in the nature of quo warranto, and the proceedings therein, see the opinion by Mr. Justice Moore in the recent case of State ex. inf. Brown v. Sengstacken, 61 Or. 455 (122 Pac. 292).\\nWe will take up the questions referred to in their inverse order. In an action partaking of the nature of quo warranto, in the absence of any legislation or controlling consideration to the contrary, the rule that the onus probandi is upon the respondent applies, and the defendants must prove the existence of the corporate franchise which they are alleged to have usurped, and their title to the offices, with the wrongful claim or usurpation of which they are charged. State ex rel. v. Sharp, 27 Minn. 38 (6 N. W. 408) ; 3 High, Ex. Legal Rem. \\u00a7 629. We find that in ordinary civil actions the burden rests upon the plaintiff to allege and prove his title to the thing in controversy. In quo warranto proceedings we find the rule reversed, and it rests upon the respondent to show his title to the office or franchise in dispute. If he fails to show complete title, judgment is rendered against him. While in civil actions plaintiff recovers upon his own title in an action in the nature of a quo warranto', the respondent must show that he has a good title as against the government. High, Ex. Legal Rem. (3 ed.), \\u00a7 712. Mr. Dillon in his work on Municipal Corporations (volume 4 [5 ed.], \\u00a7 1555), says:\\n\\\"In a proceeding by information in the nature of a quo warranto the defendant must either disclaim or justify. If he disclaims, the State is at once entitled to judgment. If he justifies, he must set out his title specifically. It is not enough to allege generally that he was duly elected or appointed to the office. He must plead facts, showing on the face of the plea that he has a valid title to the office. The State is not bound to show anything.\\\"\\nIn Section 1554 of the same volume, we find the following :\\n\\\"The certificate of election of an officer, or his commission, coming from the proper source, is prima facie evidence in favor of the holder; and in every proceeding, except a direct one to try the title of such holder, it is conclusive; but in quo warranto the court will go behind the certificate or commission, and inquire into the validity of the election or appointment, and decide the legal rights of the parties upon full investigation of the facts.\\\"\\nIt is a well-settled rule in Oregon that the notices required by statute to be given for a special election constitute a condition precedent which must be observed in order to validate the measures to be voted upon at such election. Marsden v. Harlocker, 48 Or. 90 (85 Pac. 328: 120 Am. St. Rep. 786) ; Guernsey v. McHaley, 52 Or. 555 (98 Pac. 158) ; Wright v. City of McMinnville, 59 Or. 397 (117 Pac. 298). The purpose of the notices is to inform the legal voters of the time, place, and object of the election. State ex inf. v. Sengstacken, 61 Or. 455 (122 Pac. 292).\\nConsidering now the evidence produced by defendants, it appears that a petition, containing the requisite number of signatures, was presented to the county court of Tillamook County, requesting that the question of incorporating the port be submitted to the legal voters; that the county court made an order providing for the holding of a special election therefor, and directing the county clerk to give notice of such election to be held on the 24th day of August, 1909; that at a special session of the court on the 31st day of August, 1909, 248 votes having been cast in favor of incorporating the port and 172 votes against the same, the court made and entered a proclamation declaring the Port of Tillamook to be duly incorporated as a municipal corporation, pursuant to the act of 1909; that thereafter the Governor appointed a board of five commissioners for said port, consisting of the defendants H. T. Botts, A. G. Beals, D. Fitzpatrick, James Walton, Jr., and M. F. Leach, who duly qualified; that the commissioners H. T. Botts and D. Fitzgerald were re-elected at the general election November 8, 1910, their terms having expired; and that they qualified as such commissioners. Their certificates of election and appointment were produced in evidence. As far as the form of the proceedings is concerned, we think the defendants made a prima facie case. The statute does not require a record of the posting of such election notices. Section 799, subd. 15, L. O. L., makes it a disputable presumption that official duty has been regularly performed. Section 797, L. O. L., reads:\\n\\\"A presumption, unless declared by law to be conclusive, may be overcome by other evidence, direct or indirect; but unless so overcome, the jury are bound to find according to the presumption.\\\"\\nThe defendants show a compliance with the statute up to the time that it was the duty of the clerk to issue and mail notices to the judges and clerks of the election in the different precincts. Then the law steps in with the presumption that this official duty has been regularly performed, which in itself stands as prima facie evidence that the notices were issued and posted. Lane County v. Neilon, 44 Or. 14, 21 (74 Pac. 212). Presumptions of this character are made a part of the substantive law of this State by statutory enactment. In State ex inf. Brown v. Sengstacken, 61 Or. 455 at page 468 (122 Pac. 297), it is said: \\\"In elections to incorporate ports, neither the judges nor the clerks are required to make any return of the posting of election notices. Bennett Trust Co. v. Sengstacken, 58 Or. 333 (113 Pac. 863). This duty never having been imposed by statute, it will be assumed, without deciding the question, that the 14 notices, in respect to which no evidence was offered, were properly presumed by the trial court to have been regularly posted\\\" \\u2014 citing Wheat v. Smith, 50 Ark. 266, 276 (7 S. W. 161). It is laid down as a rule, in 15 Cyc. 326, that, where an election has been held and the will of the voters has been executed by the proper authority, it may be presumed that due notice of the election was given. Under the rule that the performance of a prior act is necessary to the legality of a subsequent act, proof of the latter carries with it a presumption of the due performance of the former. Knox County v. Ninth National Bank, 147 U. S. 91 (13 Sup. Ct. 267: 37 L. Ed. 93) ; Brownell v. Palmer, 22 Conn. 106. The circuit court found that, pursuant to the order of the county court, the county clerk duly issued notices for the holding of a special election called by such order; that the notices were transmitted to the respective judges and clerks of the election in the various precincts described in the petition; and that the notices were, by such judges and clerks, duly posted within their several precincts more than 10 days prior to the holding of such election. This finding was warranted by the evidence.\\nThe real cause of the controversy in this case was the extension of the limits of the original Port of Tillamook. It is asserted by the relators that there was no statute authorizing incorporated ports to extend their boundaries until the passage of the act of 1911. See Laws of Oregon 1911, p. 157. It was therefore impossible for the Port of Tillamook, as created by the act of 1899, and known as the legislative port, to take proceedings in 1909 to reorganize and extend its boundaries at a time when there was no authority of law therefor. The portions of the amendments to the constitution applicable to this question are as follows:\\n\\\"The legal voters of every city and town are hereby granted power to enact and amend their municipal charter, subject to the Constitution and criminal laws of the State of Oregon.\\\" Article XI, Section 2, Constitution of Oregon.\\n\\\"The initiative and referendum powers reserved to the people by this constitution are hereby further reserved to the legal voters of every municipality and district, as to all local, special, and municipal legislation, of every character, in or for their respective municipalities and districts. The manner of exercising said powers shall be prescribed by general laws, except that cities and towns may provide for the manner of exercising the initiative and referendum powers as to their municipal legislation. Not more than 10 per cent of the legal voters may be required to order the referendum nor more than 15 per cent to propose any measure, by the initiative, in any city or town.\\\" Article IV, Section la, Constitution of Oregon.\\nIn ingrafting these amendments into the fundamental law of this State, the people inaugurated a scheme for local self-government. They paved the way for the enactment of local or special measures. The qualifying words, \\\"local\\\" and \\\"special,\\\" relating to municipal legislation, as used in Article IV, Section 1\\u00bf, are synonymous terms, and mean enactments intended to affect only certain persons, or to operate in specified localities only. Acme Dairy Co. v. Astoria, 49 Or. 520, 523 (90 Pac. 153). See, also, Cook v. Port of Portland, 20 Or. 580 (27 Pac. 263: 13 L. R. A. 533) ; Farrell v. Port of Portland, 52 Or. 582 (98 Pac. 145). We quote from a note in 36 Cyc. at page 987, as follows:\\n\\\"The term 'local,' as applied to statutes, is of modern origin, and is used to designate an act which operates only within a single city, county, or other particular division or place, and not throughout the entire legislative jurisdiction. In this sense, the term 'local' is the antithesis of 'general' \\\"\\n\\u2014citing State v. Sayre, 142 Ala. 641 (39 South. 240: 4 Ann. Cas. 656) ; McGregor v. Baylies, 19 Iowa 43. See, also, Schubel v. Olcott, 60 Or. 503 (120 Pac. 375, 378) ; Farrell v. Port of Columbia, 50 Or. 169 (91 Pac. 546: 93 Pac. 254). The distinction between a general law and a local law is not easily defined. It has often been found expedient to leave the matter open to a considerable extent for determination upon the special circumstances of each case. Ferguson v. Ross, 126 N. Y. 459 (27 N. E. 954). In the absence of any clear and express declaration to that effect, in the amendments to our organic law, which are the source from which the authority emanates, only those powers incident and germane to the municipal government may be deemed to be delegated or reserved. Such municipal corporations are always subject to the control and regulation of the lawmakers of the State in the manner directed by the constitution. City of McMinnville v. Howenstine, 56 Or. 451, 456 (109 Pac. 81). While these public corporations are capable of adopting and amending their charter, they still continue to be agencies of the State. A general control is left in the legislative assembly. At the same time the people retain, under the initiative and referendum, full power over them. Therefore such municipal authority to act upon local matters should be exercised with due regard to the right of adjoining localities, and in harmony with the general plan of home rule. If a municipal corporation is permitted to extend its boundaries, step by step, indefinitely, without the sanction of the State or the people of the districts included in the extensions, it would be subversive of the very plan as expressed by the people in their sovereign power through the ballot, and not a reasonable exercise of the power conferred. To this extent the proceedings in question are not \\\"local\\\" or \\\"special\\\" within the meaning of the constitution, and are not germane to the government of the port. They are inconsistent with the plain import of our organic law. Straw v. Harris, 54 Or. 424 (103 Pac. 777) ; Farrell v. Columbia, 50 Or. 169 (91 Pac. 546: 93 Pac. 254). Section 3209, L. O. L., authorizing the annexation- of new territory to municipal corporations, requires the consent of the people of the area to be annexed. The same safeguard is contained in the act of 1911, which provides for the changing of the boundaries of ports, and prescribes the manner for proceeding to annex new territory thereto. See Section 3, Chapter 115, Laws 1911. This is a salutary requirement, and seems to be the policy of the law. It is within the spirit and letter of the constitutional provision for the enactment of local measures by means of the initiative. We know of no authority, either delegated or reserved to the people of a municipal corporation, permitting the enactment of a local measure for the extension of the boundaries of the municipality so as to include a large section of country, without the consent of the legal voters who reside in the area to be annexed. There. is no doubt but that the people of the whole State could pass such a law. Sections 855, 356. The assumption of such power by the Port of Tillamook is not in consonance with our laws granting to municipalities and districts the privilege to enact local or special laws. It was held in McBee v. Town of Springfield, 58 Or. 459 (114 Pac. 637), that it was a reasonable exercise of the initiative power for the people to change the boundaries of the town in accordance with the provisions of Section 3209. In the case at bar the measures taken for annexation are not reasonably within the generic term of municipal legislation. Acme Dairy Co. v. Astoria, 49 Or. 520, 523 (90 Pac. 153). Such proceedings are not local or special within the meaning of that part of the constitution above quoted. Schubel v. Olcott, 60 Or. 503 (120 Pac. 375, 378). An attempt was made to repeal the charter granted to the Port of Tillamook by the legislature. McKeon v. City of Portland, 61 Or. 385 (122 Pac. 291).. The effect thereof was not a reorganization of the port within the contemplation of the provisions of the Laws of 1909. We see no reason why the original Port of Tillamook is not a valid corporation.\\nIt appears that the main pui'pose of the election was to change the boundaries of the Port of Tillamook so as to embrace new territory. The question of annexation was not submitted in such a manner as to allow the legal voters of the area to be annexed to vote separately from those within the limits of the municipality. It is indicated,' as far as can be ascertained from the ballot, that the outside voters were opposed to annexation. The electoin held, and the action taken pursuant thereto, did not effectuate an enlargement of the port, and were unauthorized and void.\\nA quo warranto action is a proper proceeding to test the validity of such attempted reorganization. State ex rel. v. Dunson, 71 Tex. 65 (9 S. W. 103); J. T. Harness v. State of Texas, 76 Tex. 566 (13 S. W. 535) ; Butler v. Walker, 98 Ala. 358 (13 South. 261: 39 Am. St. Rep. 61) ; State ex rel. v. New Whatcom, 3 Wash. 7, 10 (27 Pac. 1020).\\nIt is claimed on the part of defendants that the State is estopped from proceeding in this case on account of laches. The reorganization was attempted to be effected in August, 1909, and this action was commenced June 14, 1911. It is seldom that laches are imputed to a State in a quo loarranto action to test the legality of an incorporation where the rights of the public are involved. We think there is no merit in this claim. State of Texas ex rel. v. Wofford, 90 Tex. 514 (39 S. W. 921) ; Attorney General ex rel. v. Lowrey, 131 Mich. 639 (92 N. W. 289) ; People ex rel. v. Gary, 196 Ill. 310 (63 N. E. 749); Commonwealth v. Allen, 128 Mass. 308; Attorney General v. Marr, 55 Mich. 445- (21 N. W. 883). In the absence of any statutory period of limitation, it is held in this country that an action in the nature of a quo warranto in behalf of the people may be commenced at any time; that the lapse of time constitutes no bar to the proceeding in conformity with the maxim, \\\"nullum temp%is occurrit regi.\\\" Catlett v. People ex rel., 151 Ill. 16 (37 N. E. 855) ; State of Rhode Island v. Pawtuxet Turnpike Co., 8 R. I. 521 (94 Am. Dec. 123).\\nA discussion of many of the questions referred to in the briefs would be unfruitful, as the necessary legislation for the extension of the boundaries of incorporated ports was enacted in 1911. See Laws of Oregon 1911, p. 157. In conformity with Section 3, Article VII, of the Constitution of this State (Laws 1911, p. 7), all of the evidence being contained in the record, the judgment of the lower court will be reversed, and a judgment entered here in accordance with this opinion.\\nReversed.\"}"
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+"{\"id\": \"4498921\", \"name\": \"ELIZABETH BAGLEY v. WILLIAM BAGLEY, Jr., et al., Exrs.\", \"name_abbreviation\": \"Bagley v. Bagley\", \"decision_date\": \"1924-02-05\", \"docket_number\": \"\", \"first_page\": \"368\", \"last_page\": \"374\", \"citations\": \"110 Or. 368\", \"volume\": \"110\", \"reporter\": \"Oregon Reports\", \"court\": \"Oregon Supreme Court\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-11T00:15:46.706340+00:00\", \"provenance\": \"CAP\", \"judges\": \"McBride, C. J., and Rand and McCourt, JJ., concur.\", \"parties\": \"ELIZABETH BAGLEY v. WILLIAM BAGLEY, Jr., et al., Exrs.\", \"head_matter\": \"Argued December 11, 1923,\\naffirmed February 5,\\nrehearing denied and costs taxed March 4, 1924.\\nELIZABETH BAGLEY v. WILLIAM BAGLEY, Jr., et al., Exrs.\\n(222 Pac. 722.)\\nWills \\u2014 Agreement to Make Will Enforceable.\\n1. An agreement will be sustained by which competent parties contract that one shall make a will in favor of the other.\\nWills \\u2014 Marriage of Testator Abrogated Will Made Prior Thereto.\\n2. Where contract provided that plaintiff would enter into testator\\u2019s service as housekeeper and caretaker, serve and care for him during the remainder of his lifetime, and that on his death he should leave her all his property, and thereafter, after executing and delivering his will to plaintiff pursuant to such contract, and before any performance by plaintiff, testator married her, such marriage, under Section 10098, Or. L., abrogated such will.\\nWills \\u2014 Voluntary Assumption by Marriage of Duties Imposed by Prior Contract to Make Will Held to Destroy Consideration for Contract.\\n3. Where plaintiff contracted to enter testator\\u2019s service as housekeeper and serve him during the remainder of his life in consideration of his leaving her his property by will and before any performance by plaintiff, but after testator executed and delivered will to her she contracted marriage with him, by thus voluntarily assuming under the marriage contract the duties she was to perform under the first contract, consideration for the promise to make the will was destroyed.\\n1. Specific performance of contract to leave property in consideration of services or support, see notes in Ann. Cas. 1914A, 399; 44 L. R. A. (N. S.) 733.\\n2. Intermarriage of parties as affecting contract for services see note in 14 A. L. R. 1013.\\nSee 40 Cye. 1063, 1201.\\nFrom Washington: Geo. G. Bingham, Judge.\\nDepartment 1.\\nAffirmed. Rehearing Denied.\\nFor appellant there was a brief and oral argument by Mr. Harry G. Hoy.\\nFor respondents there was a brief over the names. of Mr. E. B. Tongue and Messrs. Hare, McAlear & Peters, with oral arguments by Mr. Tongue and Mr. W. G. Hare.\", \"word_count\": \"1918\", \"char_count\": \"11240\", \"text\": \"BURNETT, J.\\nThe plaintiff is the widow and the defendants are the sons and executors of the will of William Bagley, Sr., deceased. The complaint contains the following allegations:\\n\\\"1. That on or about the first day of January, 1917, and while the above-mentioned William Bagley, now deceased, was alive, plaintiff entered into a contract with the said William Bagley (sometimes known and described as 'William Bagley, Sr.') by the terms of which it was agreed that as soon as the parties thereto could arrange their affairs to that end this plaintiff was to enter into the service of said William Bagley as his housekeeper and caretaker, and should so serve and care for him during the remainder of his lifetime; and that in consideration of the faithful performance of the conditions so imposed upon plaintiff by said agreement the said William Bagley was to furnish plaintiff with a good home, was to feed and to clothe her, and that upon his death he should leave, will, bequeath and devise to the plaintiff all of the property, both real and personal, that should belong to him at the time of his death, except so much as was necessary to pay his just debts and funeral expenses, and to allow to each of his five children then living the sum of One Dollar.\\n\\\"2. That it was further mutually understood and agreed by and between the said William Bagley, Sr., and this plaintiff, at or about the time above mentioned, that their said agreement could be best and most satisfactorily performed and rendered effective to accomplish the principal purpose desired by the said William Bagley, namely, the constant care and close attention of a capable and thoughtful housekeeper, if the said parties should enter into a contract of marriage.\\n\\\"3. That pursuant to the terms of said agreement the said William Bagley did execute and deliver to this plaintiff, shortly after entering into the agreement aforesaid, to wit, January 3, 1917, a will by the terms of which, after revoking all former wills made by him, directing the prompt payment of his just debts and funeral expenses after his death, and giving to each of his five children the sum of One Dollar, he gave, devised, and bequeathed all the rest, residue, and remainder of his property, both real and personal and mixed, wheresoever situate, of which he was then possessed or of which he might thereafter become possessed or seized, to this plaintiff; and thereafter, in further preparation for the carrying out and consummation of said agreement, and as soon as said parties could arrange their affairs and plaintiff was enabled to assume the duties devolving upon her by the terms of said agreement, to wit, June 2, 1917, said William Bagley and this plaintiff were married and plaintiff commenced the performance of the duties devolving upon her by virtue of said agreement aforesaid.\\\"\\nThe remainder of the complaint is to the effect that after the marriage the plaintiff performed her part of the agreement but the decedent made another will afterwards by which he bequeathed to the plaintiff only one dollar and, after other small bequests, devised all the remainder of his property to the defendants. The prayer is to the effect that the court establish the contract the plaintiff declares upon and that the defendants be held to be trustees, for her benefit, of the property devised to them.\\nThere was a general demurrer to the complaint which the Circuit Court sustained and, as the plaintiff declined to plead further, the suit was dismissed and the plaintiff appealed.\\nParagraph 1 avers a complete executory contract. If, without further agreement, except as there stated, the plaintiff had performed what she therein promised, she could have recovered; for it is well settled that an agreement will be sustained by which competent parties contract that one shall make a will in favor of the other: Woods v. Dunn, 81 Or. 457 (159 Pac. 1158); Mathews v. Tobias, 101 Or. 605 (201 Pac. 199).\\nNot content, however, with this complete executory contract, the parties, according to the allegations of paragraph 2 entered into a new, further and separate contract, namely, the contract of marriage, which by operation of law covered and included the covenants on the part of the plaintiff which were made in the first contract. In other words, she bound herself by the contract of marriage to do the very things which she agreed to do in the first stipulation. It is disclosed in the complaint that in carrying out his part of the first contract, the decedent executed and delivered to the plaintiff his last will and testament on January 3, 1917, devising and bequeathing to her all the property of which he might die seized except some nominal bequests to his children after paying his debts. The marriage contract was executed on June 2, 1917, before there was any performance by the plaintiff of the contract set out in paragraph 1. The two contracts are not collateral. One is not security for the other. They are successive, the latest of which supersedes the former.\\nThe subsequent marriage of the testator abrogated the will he had executed and delivered to the plaintiff, for Oregon Laws, Section 1098, reads thus:\\n\\\"A will made by an unmarried person shall be deemed revoked by his or her subsequent marriage.\\\"\\nThe plaintiff's voluntary assumption by virtue of the marriage, of the duty she was to perform under the first contract, destroyed the consideration for the promise to make the will. There then remained no consideration for any contract by which she would get anything from her husband beyond what inured to her from the marriage. In other words, there was' a complete supersession of the first contract.\\nThe case is not like Larsen v. Johnson, 78 Wis. 300 (47 N. W. 615, 23 Am. St. Rep. 404), cited by the plaintiff. There, the original contract included not only the services to be performed by one of the proposed spouses on the one hand and the conveyance of property by the other, but it also included the mutual agreement of the parties to marry each other. The contention was made under a statute like ours that the agreement was void when not in writing and made upon the consideration of marriage other than a mutual promise to marry; but the court said arguendo that enough was stated for consideration moving from each of the contracting parties to sustain the covenant and that what was said about marriage was only incidental and might be disregarded. Moreover, the decision was put upon the ground that the case was taken out of the statute of frauds by complete performance of the contract by both parties.\\nThe distinction between that case and the one in hand lies in this: That according to the pleading here, a complete agreement was made prior to anything stated or stipulated about a marriage. In this instance the marriage was subsequent to and independent of the former agreement. In brief, the decedent married his housekeeper. She assumed a new relation which, by operation of law, compelled her to perform those things independent of the former contract. She assumed the position voluntarily in which she had no right to call upon the decedent to make a will in her favor, for she had so obligated herself by the marriage that she was not able to furnish the consideration for his making the will. That she can claim nothing for doing what she was legally bound to do is taught in Hoskins v. Powder Land & Irr. Co., 90 Or. 217 (176 Pac. 124), and precedents there cited. See, also, Feenaughty v. Beall, 91 Or. 654 (178 Pac. 600).\\nNeither is this case like those cited by the plaintiff to the effect that where married spouses living apart under circumstances giving one of them a just cause to dissolve the marriage relation, an agreement to resume those relations is a sufficient consideration requiring the party at fault to pay a sum of money or to convey property or the like. The waiver of the innocent party's chose in action to dissolve the marriage contract constitutes a sufficient consideration to suppoib the covenant of the offending spouse to pay the money, for the marriage relation does not bind either party to endure at the hands of the other anything the statute makes a ground for divorce. It does, however, require of the wife just such services to her husband as the plaintiff here says she was to perform as his housekeeper.\\nNo breach of the marriage relation appears in the pleadings here. On the contrary, plaintiff states that she performed what she was obliged to perform by that matrimonial stipulation. There was no occasion or requirement for the decedent to make a will in her favor, for there was no consideration binding him so to do because she had otherwise agreed to do the things she relies upon as a consideration. She has not even partly performed the first contract she states and his part performance was rendered nugatory by his marriage subsequent to the execution of the will. The subject is ably treated in Bohanan v. Maxwell, 190 Iowa, 1308 (181 N. W. 683, 14 A. L. R. 1004, and note in the last citation). The decree of the Circuit Court is affirmed.\\nAffirmed. Rehearing Denied. Costs Taxed.\\nMcBride, C. J., and Rand and McCourt, JJ., concur.\"}"
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+"{\"id\": \"4538948\", \"name\": \"STATE v. LOCKE\", \"name_abbreviation\": \"State v. Locke\", \"decision_date\": \"1915-09-21\", \"docket_number\": \"\", \"first_page\": \"492\", \"last_page\": \"501\", \"citations\": \"77 Or. 492\", \"volume\": \"77\", \"reporter\": \"Oregon Reports\", \"court\": \"Oregon Supreme Court\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T17:06:45.891060+00:00\", \"provenance\": \"CAP\", \"judges\": \"Mr. Chief Justice Moore, Mr. Justice Benson and Mr. Justice Eakin concur.\", \"parties\": \"STATE v. LOCKE.\", \"head_matter\": \"Argued September 8,\\naffirmed September 21, 1915.\\nSTATE v. LOCKE.\\n(151 Pac. 717.)\\nBigamy\\u2014Lascivious Cohabitation\\u2014Statutes\\u2014\\u201cPolygamy.\\u201d\\n1. Section 2073, L. O. I/., declaring guilty of \\u201cpolygamy\\u201d a person who, having a former husband or wife living, shall marry another, or live and cohabit with another as husband or wife, and providing a punishment, which may be imprisonment in the penitentiary, is not repealed and supplanted by Section 2075, providing punishment, as a misdemeanor, if any man and woman, not being married to each other, shall lewdly or lasciviously cohabit or associate together; the second section not defining the same offense as the first, but proof being required under the first not required under the second.\\n[As to what constitutes bigamy, see note in 93 Am. Dec. 252.]\\nIndictment and Information\\u2014Allegations\\u2014Place of Offense.\\n2. An indictment charging that defendant, in the county of L. then and there being, and having a wife living in P., then and there cohabited with another woman as his wife, charges the commission of the crime in L., and not in P.\\nWitnesses\\u2014Competent\\u2014Wife\\u2014Bigamy.\\n3. Section 1535, L. O. L., as amended by Laws of 1913, page 351, providing that in prosecutions for polygamy the wife of accused shall be a competent witness, and may testify against him, and without his consent, as to the fact of marriage, does not limit her testimony to the marriage ceremony.\\n[As to proof of former marriage in prosecutions for bigamy, see notes in 47 Am. St. Rep. 228; 106 Am. St. Rep. 768.]\\nCriminal Law\\u2014Reception of Evidence\\u2014Scope of Objections.\\n4. The objection of defendant in polygamy to his wife testifying, except to the fact of marriage, is not sufficient to raise the\\\" objection of the generality of her subsequent testimony that she is married to him.\\nCriminal Law\\u2014Documents in Other State\\u2014Authenticating Copies.\\n5. The certification of a copy of the record of a marriage license and certificate in a county of another state, by the clerk of the Circuit Court of such county, under the seal of the court, to be correct copies of such instruments as they appear of record, with the appended certificate of the judge thereof that the copy was made and issued in due form, and that the certifying officer was the clerk, and the person having the legal custody of the original, being in compliance with Section 766, subdivision 7, L. O. L., relating to proof of documents in a sister state, renders the evidence competent.\\nCriminal Law \\u2014 Documents in Other State \\u2014 Authenticating Copies.\\n6. Any necessity of proof of the statute of another state authorizing such a record, before a certified copy of the record of a marriage license and certificate therein can be introduced, is satisfied by the statement of the judge in his appended certificate that the certifying clerk was the legal custodian of the original.\\nNames \\u2014 Presumption\\u2014Identity of Person,\\n7. Identity of the name of defendant in polygamy with the name in a marriage certificate introduced in evidence primarily connects him with the marriage, under Section 799, subdivision 25, L. O. L., giving as a disputable presumption identity of person from identity of name.\\nBigamy \\u2014 Presumption\\u2014Validity of Former Marriage.\\n8. The presumption is generally in favor of the validity of a former marriage, absent evidence to the contrary.\\nCriminal Law \\u2014 Admission\\u2014Marriage\\u2014Divorce Decree.\\n9. Introduction by defendant in polygamy of a copy of a decree of divorce, of him from another is an admission of his having been married to such person.\\nCourts \\u2014 Becord\\u2014Failure to Show Jurisdiction.\\n10. A decree of a court of general jurisdiction setting aside its decree of divorce, being presumed to have been rightfully given, is admissible, though it does not show that notice of the application to open the decree was served; lack of jurisdiction neither appearing on its face nor being shown.\\nCriminal Law \\u2014 Evidence Admissible by Reason of Other Evidence.\\n11. Defendant in polygamy having introduced a deeree of divorce, the state may introduce one setting it aside, though incidentally it shows his unfairness in obtaining his decree by stealth.\\nBigamy \\u2014 Former Marriage \\u2014 Evidence.\\n12. Evidence on a prosecution for polygamy held sufficient to prove a valid former marriage of defendant.\\nBigamy \\u2014 Cohabiting\\u2014Evidence.\\n13. Evidence on a prosecution for polygamy held sufficient to authorize a finding of defendant, having a wife, living and cohabiting with another as his wife.\\nFrom Lane: Lawrence T. Harris, Judge.\\nDepartment 2.\\nStatement by Mr. Justice Bean.\\nOn October 23, 1914, Jobn A. Locke, tbe defendant, was indicted for tbe crime of polygamy.\\nThe charging part of the indictment is as follows:\\n\\u201cThat the above-named John A. Locke, defendant, on the 25th day of March, A. D. 1914, in the county of Lane, State of Oregon, then and there being\\u2019, and having a wife then living, to wit: One Jessie A. Locke, who was then and who had been for a long time previous thereto living in Portland, Oregon, did then and there, and while she, the said Jessie A. Locke, was still the wife of him, the said John A. Locke, wrongfully, unlawfully and feloniously live and cohabit with another woman, to wit: With one Nellie Gilmore as the wife of him the said John A. Locke, contrary to the statutes,\\u201d etc.\\nA trial was had before a jury, resulting in a verdict and judgment of conviction. Defendant appeals.\\nAffirmed.\\nFor appellant there was a brief with oral arguments by Mr. M. Vernon Parsons and Mr. Ralph A. Watson.\\nFor the State there was a brief over the names of Mr. Joseph M. Devers, District Attorney, and Mr. J. F. Brumbaugh, with an oral argument by Mr. Devers.\\nAs to husband or wife as witness against the other in prosecution for bigamy, see note in 2 L. R. A. (U. S.) 862.\\nAs to presumption of validity of former marriage in prosecution for bigamy, see note in 9 L. R. A. (U. S.) 1036.\\n\\u00a1Por admissibility of judgment in civil action as proof of, former marriage on trial for bigamy, see note in 26 L. R. A. (U. S.) 464.\\nRepostesr.\", \"word_count\": \"2975\", \"char_count\": \"17176\", \"text\": \"Mr. Justice Bean\\ndelivered the opinion of the court.\\nIt is the position of counsel for defendant that Section 2073, L. O. L., which inhibits polygamy in the following language, to wit:\\n\\\"If any person having a former husband or wife living shall marry another person, or live and cohabit with another person as husband or wife, such person shall be deemed guilty of polygamy. ' '\\n\\u2014was repealed by Section 2075, L. O. L. The former section directs a punishment by imprisonment in the penitentiary or county jail or by fine. The latter section provides for a punishment as a misdemeanor:\\n\\\"If any man and woman, not being married to each other, shall lewdly or lasciviously cohabit or associate together. ' '\\nBoth sections were enacted in 1864. It is argued that the latter numbered section defines the same act as is defined in the former. The fact that the offense described in Section 2075 might contain some of the elements of the crime defined in Section 2073 does not warrant the conclusion that the latter is supplanted by the former. The intent of Section 2073 is to preserve .the sanctity of the marriage relation. Polygamous relations are a crime not included in the provisions of Section 2075. To prove an infraction of the statute against polygamy would require different evidence than that required in a case of lewd or lascivious cohabitation: State v. Donahue, 75 Or. 409 (144 Pac. 755). The contention of defendant's counsel cannot be upheld in this respect. Both statutes have stood the test since 1864. The statute prohibiting bigamy in this state has not been repealed.\\nIt is next submitted on behalf of defendant that the indictment does not charge any offense in Lane County, but that, if any offense is charged, it is an offense in Portland. With this claim we cannot agree. A reading of the accusation is sufficient to inform defendant that he is charged in the usual language with the commission of a crime in Lane County. State v. Durphy, 43 Or. 79, 82 (71 Pac. 63), relied upon by defendant's counsel, is not in point.\\nUpon the trial, Mrs. Jessie Locke, the wife of defendant, was called as a witness for the state. Counsel for defendant objected to this witness testifying, except as to the fact of the marriage. The court sustained this objection. The witness then testified as follows:\\n\\\"Q. State whether or not you are married to the defendant.\\n\\\"A. Yes.\\n\\\"Q. When?\\n\\\"A. The 2d of November, 1897.\\n\\\"Q. Where?\\n\\\"A. Economy, Indiana, Wayne County.\\\"\\nAll other evidence of this witness was excluded. Counsel for defendant now insists that the admission of the answer to the question quoted above was error; that the same came within the objection and ruling. No additional specific objections to the question or motion to strike out the evidence was made. Section 1535, L. O. L., as amended by Laws of Oregon of 1913, page 351, provides inter alia:\\n\\\"That in all criminal actions for polygamy or adultery, the husband or wife of the accused, shall be a competent witness, and shall be allowed to testify against the other, and without the consent of the other, as to the fact of marriage.\\\"\\nIt is the claim of defendant that the wife could only testify as to the marriage ceremony. The point is not well taken. The objection of counsel was not specific enough to direct the mind of the trial court to the objection now contended for. The evidence introduced is permitted by the statute. The question raised is only one of phraseology. If the general statement of the witness as to the fact of marriage was unsatisfactory to defendant, it should have been challenged by cross-examination or otherwise. There was no error in this respect.\\nThe state, over objection and exception of defendant's counsel, introduced in evidence a certified copy of the record of a marriage license and certificate, in Wayne County, Indiana. It is maintained by defendant's counsel that the copy was not properly certified and that it was not connected with defendant. The documents are certified by the clerk of the Circuit Court of Wayne County, Indiana, under the seal of the court, to be correct copies of the marriage license and certificate of marriage of John A. Locke to Jessie A. McCall, on November 2, 1897, as the same appear of record. There is appended the certificate of the judge of that court to the effect that the certified copy of the marriage certificate was made and issued in due form and that the certifying officer was the clerk and the person having the legal custody of the original certificate. This is a compliance with subdivision 7 of Section 766, L. O. L., relating to proof of documents in a sister state, and rendered the evidence competent. The claim of defendant that the state should prove the statute of Indiana authorizing such record is satisfied by the statement of the judge of that state that the clerk was the legal custodian of the original. The evidence of the wife connects the defendant with the marriage on the date named in the marriage certificate. His name is identical with the name contained therein primarily leaving no room for mistake: Section 799, subd. 25, L. O. L. The presumption is generally in favor of the validity of a former marriage when there is no evidence to the contrary: 5 Cyc. 699.\\nThe defendant introduced in evidence a copy of a decree of divorce of defendant from Jessie A. Locke, rendered by the Circuit Court for Clackamas County, May 11, 1914. This was an admission on the part of defendant that he had been married to the person named, and amply supplemented the other evidence of marriage. In rebuttal tbe state offered in evidence a decree of the Circuit Court for Clackamas County, dated November 21, 1914, setting aside tbe decree of divorce of May 11th, for tbe reason that tbe affidavit for publication of summons was false and fraudulent; that tbe defendant's wife was witbin tbe state at tbe time, to affiant's knowledge; that Mrs. Locke bad no notice or knowledge of tbe decree; and permitting her to answer. Defendant's counsel objected to tbe latter decree, upon tbe ground that it was prejudicial, and that tbe same did not show notice of tbe application to open up tbe decree was served upon tbe plaintiff in tbe divorce case, who is tbe defendant here, and saved an exception to its introduction, and also moved to strike tbe same out. Section 103, L. O. L., confers the power upon tbe court, in its discretion, at any time witbin one year after notice thereof, to relieve a party from a judgment, order or proceeding taken against bim through bis mistake, inadvertence, surprise or excusable neglect. A proceeding under this section is a direct proceeding, and tbe presumption is in favor of tbe validity of tbe decree: Grabill v. Grabill, 22 Or. 590 (30 Pac. 320); 14 Cyc. 722; Evans v. Evans, 60 Or. 195 (118 Pac. 177). There is no lack of jurisdiction of tbe court appearing on tbe face of tbe record introduced in evidence, and nothing to tbe contrary was shown.\\n\\\"Tbe judgment of a court of general jurisdiction is always presumed to have been rightly given, and its jurisdiction to have attached fully until tbe contrary is shown\\\": 23 Cyc. 682.\\nThere are exceptions, as where it is shown that tbe party to be served is a nonresident of tbe state: Knapp v. Wallace, 50 Or. 348 (92 Pac. 1054, 126 Am. St. Rep. 742). Neither of the decrees referred to notes the manner of service or the appearance of either party or attorney. The judgment-roll was not introduced by either party, and the record in this case is not in a condition to raise the question of service of process. The status of the marriage of John A. Locke and Jessie A. Locke was a matter of inquiry in the case, and when the defendant introduced the decree of May 11th the state was entitled to show the true condition of the decree, notwithstanding that the decree of November 21st incidentally showed unfairness on the part of defendant in obtaining the decree by stealth. The whole matter was connected with the marital relation of defendant and Jessie A. Locke, and evidently linked together in the mind of defendant for the purpose of terminating the offense, and formed a part of the same transaction: State v. Baker, 23 Or. 442 (32 Pac. 161); Shaffner v. Commonwealth, 72 Pa. 60 (13 Am. Rep. 649); Underhill, Criminal Evidence, \\u00a7 87, 88.\\nIt developed upon the trial that the defendant was a conductor on a railroad train which ran between Portland and Eugene, having a wife living in Portland at the time it is alleged he cohabited with another woman as his wife in Eugene, and while so doing he obtained a decree of divorce in another county upon publication of summons as though his wife were a nonresident of the state. We do not discuss this matter at great length, for the reason that the trial court in the charge to the jury considered the decree of divorce as not void, but voidable only, and instructed the jury that it was a complete defense for all acts of the defendant committed on or after May 11, 1914, and that they should consider only the acts of defendant committed prior to that date. This was as favorable to the defendant as lie had reason to ask, and practically nullified the effect of the November decree.\\nAt the close of the state's case, and also after all the evidence was introduced, counsel for defendant moved for a directed verdict of acquittal, and assigns as error the refusal to grant the same. Two main points are relied upon: (1) That the state failed to prove a valid-former marriage of defendant to Jessie A. Locke; (2) that the state failed to prove that defendant had sexual intercourse with Nellie Gilmore prior to May 11, 1914. As to the former question we have alluded to a portion of the evidence. In addition to the direct evidence of the marriage given by Jessie A. Locke, and proof of the record of the license and marriage certificate, proof of subsequent cohabitation as husband and wife and the rearing of children was produced. Not only that; the defendant, by obtaining the divorce, admitted the marriage: See 5 Cyc. 700. IJpon this point there was ample evidence for the jury. There was evidence by the state tending to show that defendant and Nellie Gilmore, during March and April, 1914, in Eugene, engaged and occupied two rooms furnished for light housekeeping, with one bed; that defendant lived and cohabited there with Miss Gilmore when not on or at the other end of his run on the railroad. The circumstances tended strongly to show that they cohabited as man and wife, occupied the same bed, and had sexual intercourse. Defendant represented generally that the woman was his wife. At the end of April they engaged and occupied other similar rooms in the same manner. There was evidence from which the jury might believe beyond a reasonable doubt that defendant, while having a wife living, lived and cohabited with another woman as husband and wife, in violation of the statute. There was no error in denying the request for a directed verdict of acquittal.\\nAs we find no error in the record, the judgment of the lower' court is affirmed. Affirmed.\\nMr. Chief Justice Moore, Mr. Justice Benson and Mr. Justice Eakin concur.\"}"
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+"{\"id\": \"4557199\", \"name\": \"Albany v. McGoldrick\", \"name_abbreviation\": \"Albany v. McGoldrick\", \"decision_date\": \"1916-03-07\", \"docket_number\": \"\", \"first_page\": \"462\", \"last_page\": \"467\", \"citations\": \"79 Or. 462\", \"volume\": \"79\", \"reporter\": \"Oregon Reports\", \"court\": \"Oregon Supreme Court\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T17:41:28.714763+00:00\", \"provenance\": \"CAP\", \"judges\": \"Mr. Chief Justice Moore, Mr. Justice Burnett and Mr. Justice Benson concur.\", \"parties\": \"Albany v. McGoldrick.\", \"head_matter\": \"Argued February 18,\\naffirmed March 7, 1916,\\nAlbany v. McGoldrick.\\n(155 Pac. 717.)\\nStatutes \\u2014 Title of Act \\u2014 Scope.\\n1. Under Article IV, Section 20, of the Constitution, declaring that every act shall embrace but one subject and matters properly connected therewith, which shall be expressed in its title, Laws of 1893, page 119, entitled \\u201cAn act for a general law for the incorporation of cities and towns,\\u201d has not a sufficiently broad title to include provisions repealing or limiting powers already granted to existing municipal corporations.\\nMunicipal Corporations \\u2014 Charters\\u2014Construction.\\n2. Section 3223, L. O. L., declares that no ordinance or resolution granting a franchise shall \\u2018be passed on the day of its introduction, nor within five days thereafter, nor at any other than a regular meeting. Section 3229 declares that common- councils shall have power to fix the maximum rates for gas, and no city shall deprive itself of, the right through its common council of adjusting any such rates. Both sections are part of Laws of 1893, page 119, entitled \\u201cAn act for a general law for the incorporation of cities and towns,\\u201d which in other sections declares that municipal corporations now existing or thereafter organized under the act shall be bodies politic, with such privileges and powers as may be conferred by laws duly enacted. The City of Albany was already existing in 1893. Special Laws of 1901, page 312, under which it was incorporated, provides, in section 29, that the council may adopt rules for the government of its members and proceedings, that it must keep a journal, and that the ayes and nays shall be taken on demand of members. Held that, in view of the restrictions of the title of Laws of 1893, it was not intended to apply and limit the powers of existing municipal corporations, and henee the council of the City of Albany might grant a gas franchise at the meeting at which the measure was introduced causing it to be read three times and put on final passage.\\nMunicipal Corporations \\u2014 Charter\\u2014Powers.\\n3. Special Laws of 1903, page 767, amending the charter of Albany (Sp. Laws 1901, p. 307), in Section 11, subdivision 1, authorizes the city to provide for lighting the same with gas and the council to grant a private corporation a franchise for such purpose upon such terms as may be just; hence the council of the City of Albany might grant a franchise to persons agreeing to erect and equip a gas plant.\\n[As to powers of municipal corporation to manufacture gas and electric light for use on streets and sale to citizens, see note in 30 Am. St. Rep. 225.]\\nFrom Linn: Percy R. Kelly, Jndge.\\nDepartment 1.\\nStatement by Mr. Justice McBride.\\nThis is an action by the city of Albany against W. H. McGoldrick and the Title Guarantee & Surety Company, a corporation, to recover upon a bond given by defendants McGoldrick, as principal, and the Title Guaranty & Surety Company, as surety, conditioned that said McGoldrick, his legal heirs, executors and assigns, should install and complete the necessary plant for the furnishing of gas for lighting said city in accordance with a certain ordinance of said city designated as Ordinance No. 588, passed by the council, approved by the mayor,' and the conditions thereof accepted by the defendants. There was no compliance by the defendants with the conditions of the bond, and this action was brought to recover the penalty. There was a trial and findings and judgment had for plaintiff,. and defendant appeals.\\nAeeirmed.\\nFor appellants there was a brief over the names of Mr. Edward F. Bailey and Messrs. Weatherford & Weatherford, with an oral argument by Mr. Bailey.\\nFor respondent there was a brief over the names of Mr. Victor Oliver, Mr. L. L. Swan and Mr. Dan Johnston, with an oral argument by Mr. Oliver.\", \"word_count\": \"1714\", \"char_count\": \"10016\", \"text\": \"Mr. Justice McBride\\ndelivered the opinion of the court.\\nIt is practically admitted that, if Ordinance No. 588 is a valid'ordinance, the plaintiff is entitled to recover; otherwise, it must fail. Defendants contend that it is invalid for two reasons:\\n(1) That it violates Section 3223, L. O. L., which provides:\\n\\\"No ordinance and no resolution granting any franchise for any purpose shall be passed by the council on the day of its introduction nor within five days thereafter, nor at any other than a regular meeting. No resolution or order for the payment of money shall be passed at any other time than at a regular meeting.\\\"\\n(2) That it violates Section 3229, L. O. L., which is as follows:\\n\\\" Common council shall have power to fix the maximum rate of wharfage, rates for gas and no such city or town shall ever deprive itself of the right through its common council of regulating and adjusting any such rates, so that the same shall be reasonable for the services rendered, at least once in any period of two years. * # \\\"\\nIn our judgment neither of these sections apply to the City of Albany, for the reason that it was incorporated by a special act of the legislature, \\u2022 approved February 16, 1901 (Sp. Laws 1901, p. 307). Section 29 of said act provides:\\n\\\"The council may adopt rules for the government of its members and its proceedings. It must keep a journal of its proceedings, and on the call of any two of its members must cause the ayes and nays to be taken and entered on its journal upon any question before it; but upon a question to adjourn the ayes and nays shall not be taken, unless upon the call of three members. Its deliberations and proceedings must be public.\\\"\\nThis gave to the council unlimited discretion as to the manner in which it should transact its business, subject only to the restrictions therein; and unless this authority has been taken away by Section 3223, supra, the council had the right to introduce the ordinance, cause it to be read three times, and put it upon its final passage at the same meeting. Section 3223 has not taken away any power theretofore conferred upon the council. It is part of an act passed in 1893 (Laws 1893, p. 119), entitled \\\"An act for a general law for the incorporation of cities and towns in the State of Oregon\\\"; its general purpose being to provide for the incorporation of towns not then incorporated and to provide a general municipal charter for such towns. It also provides for the annexation of adjacent territory to cities and towns theretofore incorporated, and contains the provisions first quoted above, being Section 17 of said act. Section 7 of the act is as follows:\\n\\\"The officers of every municipal corporation organized under this act, shall be a mayor, six aldermen, a recorder, who shall be ex-officio clerk of the common council; a marshal and a treasurer, who shall hold their offices until their successors are elected and qualified, unless sooner removed for cause, and such subordinate officers as are hereinafter provided for.\\\"\\nAfter this section follows the other sections, including Section 17, which define the powers and duties of the officers and of the council; but the operation of these sections is clearly limited by Section 7 to municipal corporations organized under the act. Section 6 of the act prescribes:\\n\\\"Municipal corporations now existing in this state, or hereafter organized therein under this act, shall be bodies politic and corporate, under the name of the city or town, as the case may be, of-, and as such may sue and be sued, contract and be contracted with, acquire, hold, possess, dispose of property subject to the restrictions contained in this act or other laws of this state, have a common seal, and change or alter same at pleasure, and exercise such other powers and have such other privileges as are now conferred by law, or by this act, or which may hereafter be conferred by laws duly enacted by the legislative assembly of this state, and shall have perpetual succession.\\\"\\nThe section plainly indicates that it was not the legislative intention to repeal or limit any power already granted to municipal corporations already existing. Indeed, the title of the act is not sufficiently broad to indicate any such intention, and the act, under such circumstances, would be void because inimical to Article IV, Section 20, of the Constitution: State v. Wright, 14 Or. 365 (12 Pac. 708). We are of the opinion that Section 3223, if valid in any respect as to municipalities existing before its passage, can only be held to grant additional power, and not to repeal, limit or restrict those already granted. The same reasoning will apply to the second objection. Section 3229 is a part of the same act of 1893, and manifestly is intended to apply only to. cities and towns to be incorporated under that act.\\nSection 11, subdivision 1, of an act amending the charter of Albany, approved February 24, 1903 (Sp. Laws 1903, p. 767), authorized the city:\\n\\\"To provide the city with good and wholesome water, and to provide for the lighting of the city with gas, electricity, or other light, and for the erection of such works within or without the city limits as may be necessary or convenient therefor; to provide a fund for the constructing and defraying the expenses of the same: Provided, that the council may grant the privilege or franchise of such water, and the lighting of the streets to any private corporation, person, or company of persons, upon such terms and conditions as may be just; but no such grant shall prohibit the council from granting the same privileges and franchises to others.\\\"\\nThis section gave the city ample authority to pass the ordinance in question, and that authority is in no wise affected by the provisions of the act of 1893, as it plainly appears that the act did intend to limit the activities of cities already incorporated under special acts, and, under the provision of the Constitution above quoted, could not have accomplished that purpose in any event.\\nThe ordinance being valid, it follows that the bond is also valid, and the judgment is affirmed. Affirmed.\\nMr. Chief Justice Moore, Mr. Justice Burnett and Mr. Justice Benson concur.\"}"
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+"{\"id\": \"4825163\", \"name\": \"COAST BUSINESS BROKERS, INC. v. HICKMAN\", \"name_abbreviation\": \"Coast Business Brokers, Inc. v. Hickman\", \"decision_date\": \"1964-11-18\", \"docket_number\": \"\", \"first_page\": \"121\", \"last_page\": \"125\", \"citations\": \"239 Or. 121\", \"volume\": \"239\", \"reporter\": \"Oregon Reports\", \"court\": \"Oregon Supreme Court\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T21:22:25.813576+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before McAllister, Chief Justice, and Rossman, Sloan and Goodwin, Justices.\", \"parties\": \"COAST BUSINESS BROKERS, INC. v. HICKMAN\", \"head_matter\": \"Argued October 5,\\naffirmed November 18, 1964\\nCOAST BUSINESS BROKERS, INC. v. HICKMAN\\n396 P. 2d 756\\nDarst B. Atherly, Eugene, argued the cause and filed a brief for appellant.\\nLewis Hoffman, Eugene, argued the cause for respondent. With him on the brief were Bailey, Hoffman, Spencer & Morris, Eugene.\\nBefore McAllister, Chief Justice, and Rossman, Sloan and Goodwin, Justices.\", \"word_count\": \"914\", \"char_count\": \"5480\", \"text\": \"SLOAN, J.\\nPlaintiff, a real estate broker, brought this action to recover a broker's commission. Plaintiff's claim to a commission was based upon an earnest money receipt that had been 'signed by defendant. Defendant signed the receipt as a prospective buyer. The earnest money receipt was made a part of plaintiff's complaint. At the beginning of the trial, the trial court sustained an objection to the admission of any evidence in support of the complaint. The objection was actually in the nature of a demurrer for the reason that the complaint did not state sufficient facts to constitute a cause of action. The trial court held the receipt did not satisfy the Statute of Frauds, particularly, OES 41.580(5) and (7). Plaintiff elected to stand on the complaint. Judgment was entered for defendant. Plaintiff appeals.\\nThe earnest money receipt contained several conditions. The conditions imposed, the description of the property involved and the form of the execution of the receipt were all challenged by the demurrer. It was also contended that the receipt did not express a consideration. We need not decide this last issue. The purported description of the property involved and the other conditions of the proposed purchase, as set forth in the receipt, did not satisfy the Statute.\\nThe specific language of OES 41.580 as it applies to this case, reads:\\n\\\"In the following eases the agreement is void unless it, or some note or memorandum thereof, expressing the consideration, is in writing and subscribed by the party to be charged, or by his lawfully authorized agent; evidence, therefore, of the agreement shall not be received other than the writ ing, or secondary evidence of its contents in the cases prescribed by law:\\n# #\\n\\\"(5) An agreement for the sale of real property, or of any interest therein.\\n\\n\\\"(7) An agreement authorizing or employing an agent or broker to sell or purchase real estate for a compensation or commission; * #\\nWe mentioned that the conditions of the purchase did not meet the test of the Statute. For the purpose of this opinion, however, we will only refer to the description which attempted to identify the property involved. It read:\\n\\\" the purchase of the following described real estate situated in the City of-, County of Lane, State of Oregon to-wit: 57 Acres of land known as the Kelly Estate situate on Woakink Lake, south of Florence, Lane County, Oregon. Also two tracts of land one of 5 acres and one of 7 acres adjoining Honeyman park south of Florence. Descriptions to be attached\\nIn Hertel v. Woodard, 1948, 183 Or 99, at 102, 191 P2d 400, the requirements of the Oregon Statute, in respect to the problem at hand, were set forth in language which requires no explanation:\\n\\\" our statute of frauds doubly condemns agreements which do not comply with its exactions. It terms them void and says that evidence 'of the agreement shall not be received' except the writing itself. Apparently the stricture, doubly affixed, was intended to set at rest in this state the issue as to whether or not the statute of frauds dealt with substantive rights or mere procedure.\\n\\\"In Noyes v. Stauff, 5 Or. 455, it is said:\\n'The parol evidence, offered by the plaintiff to explain the paper and to identify the property intended to be embraced by said document, was all properly rejected, as it does not appear to contain a latent ambiguity; the ambiguity is patent, and parol evidence is not admissible to explain it.'\\nA patent ambiguity in a description of property found in a writing subject to the statute of frauds renders the instrument void: Bingham v. Honeyman, 32 Or. 129, 51 P. 735. A latent ambiguity is subject to clarification by parol evidence: Kanne v. Otty, 25 Or. 531, 36 P. 537; Hicklin v. McClear, 19 Or. 508, 24 P. 992; Holcomb v. Mooney, 13 Or. 503, 11 P 274 ?\\nIn The Oregon Home Builders v. Crowley, 1918, 87 Or 517, at 536, 170 P 718, 171 P 214, a case involving a real estate broker's action for a eommisison, the opinion of Mr. Justice Harris also expressed the basic requirements of the statute:\\n\\\" Broadly stated, a writing to satisfy the statute of frauds must show the contracting parties, intelligently identify the subject matter involved, disclose the terms and conditions of the agreement, express the consideration and be signed by the party to be charged:\\nThe description of the 5 and 7 acre tracts contained in the earnest money receipt was not just patently' ambiguous, it was devoid of any identification. The description did not \\\"intelligently identify the subject matter.\\\" It could have referred to any tract of the approximate size adjoining the Honeyman park, regardless of ownership or location. The other conditions of purchase were, as stated, also ambiguous. Thus, the trial court correctly ruled that since the writing before him contained the only evidence that could be considered, the contract was not enforceable. Hertel v. Woodard, supra, 183 Or at 103.\\nWe think it clear that the earnest money receipt did not satisfy the Statute of Frauds and the judgment is affirmed.\"}"
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+"{\"id\": \"4834787\", \"name\": \"BRIEDWELL v. HENDERSON, Sheriff\", \"name_abbreviation\": \"Briedwell v. Henderson\", \"decision_date\": \"1921-02-08\", \"docket_number\": \"\", \"first_page\": \"506\", \"last_page\": \"519\", \"citations\": \"99 Or. 506\", \"volume\": \"99\", \"reporter\": \"Oregon Reports\", \"court\": \"Oregon Supreme Court\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T23:38:17.395275+00:00\", \"provenance\": \"CAP\", \"judges\": \"Benson and Johns, JJ., concur.\", \"parties\": \"BRIEDWELL v. HENDERSON, Sheriff.\", \"head_matter\": \"Argued January 11,\\nreversed and remanded February 8,\\nrehearing denied March 8, 1921.\\nBRIEDWELL v. HENDERSON, Sheriff.\\n(195 Pac. 575.)\\nRecords\\u2014Dealers Buying Registered Automobile must have Registration Changed.\\n1. Laws of 1919, page 713, Section 9, requiring the buyer of a registered automobile to apply for a change of registration, and making a sale invalid unless the section is complied with, applies without exception, so that a sale of a registered automobile to a dealer is invalid unless the dealer has the registration changed, though the dealer has a dealer\\u2019s license, as required by the\\\"1\\\" Motor Vehicle Law.\\nRecords\\u2014Failure to Change Automobile Registration Does not Defeat AU Right to \\u201cCar.\\n2. Though the failure of the buyer of a registered automobile to have the registration changed, as required by Laws of 1919, page 713, Section 9, invalidates the sale, it does not deprive the buyer of all right to possession of the automobile, so that in an action for claim and delivery by such buyer it was error to exclude evidence of such sale to establish the buyer\\u2019s right to possession.\\n2. Effect on rights and liabilities of owner of automobile of failure to comply with statutory regulations as to registration, license, etc., sen notes in 18 Ann. Cas. 242; Ann. Cas. 1914A, 128; Ann. Cas. 1918D, 847.\\nReplevin\\u2014Special Property may he Proved Under Allegation of General Ownership.\\n3. Under an allegation of general ownership in a complaint for claim and delivery, plaintiff may prove a special property entitling him to possession.\\nConstitutional Law\\u2014Invalidity of Emergency Clause cannot be Raised Where Right Originated After Ninety-day Period.\\n4. The contention that the Motor Vehicle Law is unconstitutional, because Section 44 thereof declares an emergency, and therefore contravenes Article IX, Section la, of the Constitution, forbidding an emergency declaration in any act regulating taxation, cannot be raised in an aetion for claim and delivery, where plaintiff\\u2019s title, invalidated by Section 9 of that law, originated after the expiration of the 90-day period, during which the operation of the law would have been suspended under Article IV, Section 28, of the Constitution.\\nConstitutional Law\\u2014Invalidity of Emergency Clause on Re-enaetment of Existing Law cannot be Raised by Plaintiff, Whose Title Would be Invalid Under Preceding Law.\\n5. .Since Section 9 of Motor Vehicle Law of 1919\\u2019 was a re-enactment of a similar provision in preceding acts, so that it was a restatement or republieation of the existing law, plaintiffs, whose title would be invalid under preceding acts, cannot attack the constitutionality of the latest act.\\nLicenses\\u2014License Fees on Automobiles are Sustainable Under the Police Power.\\n6. License fees on automobiles imposed by Motor Vehicle Law are sustainable under the police power of the state, in view of the possibility for harm when such vehicles are recklessly driven, and of the great injury to the highways occasioned by them.\\nStatutes\\u2014Declaration of Purpose lias Weight\\u2014\\u201c^Preamble.\\u201d\\n7. Motor Vehicle Law, Section 42, declaring it to- be an exercise of the police power, while not controlling, is a.n important factor in determining its character, as is also the recital in the preamble that the legislators informed themselves of the effect of motor vehicles on state highways, since the \\u201cpreamble,\\u201d which is an introduction prefixed to \\u2018a statute reciting the intention of the legislature or the evils leading to the enactment, is evidence of the facts it recites, though not part of the statute.\\n7. P-pfimblp as aid to construction of statute, see note in Ann. Cas. 1917C, 500.\\nFrom Yamhill: Harry H. Belt, Judge.\\nDepartment 2.\\nFrom the record we learn that this is an action of claim and delivery, wherein the plaintiff seeks to recover possession of a Ford motor vehicle. It appears that one A. J. Syron was the owner of the vehicle in question; that on November 25, 1918, he made application to register the car for the year 1919 and a license covering that year was issued to him by the Secretary of State. Later the car was mortgaged to the Bank of Linnton to secure a certain promissory note. It is asserted that Syron went into bankruptcy. An order was made by the referee in bankruptcy directing that the car be turned over to the bank in settlement of its claim. On the eighth day of August, 1919, the bank assigned the mortgage to a Portland attorney, and on the day following Syron executed and delivered to the attorney a written bill of sale of the car. On the same day, August 9th, the attorney went to McMinnville and sold the car to the plaintiffs in this action. During the time of the transfers, the car was in a garage at McMinnville, and after its purchase by plaintiffs, they towed the car to their garage. On August 14, 1919, the plaintiffs transferred the car to P. S. Seahrook & Company conditionally. On the day of the alleged transfer, Sea-brook & Company made application to the Secretary of State for transfer of the 1919 license from the name of Syron to themselves. Default was made in the payments due from Seahrook & Company to plaintiffs. The defendant Henderson, sheriff of Yamhill County, by virtue of a writ of execution in his hands* against the property of Seabrook & Company, took possession of the car from Seabrook & Company, and advertised the same for sale. Thereafter, plaintiffs instituted an action for the purpose of recovering possession of the car. The defendant joined issue as to the ownership. A trial was had and a judgment of involuntary nonsuit was entered by the court upon motion of the defendant, from which the plaintiffs appeal to this court.\\nReversed and Remanded. Rehearing Denied.\\nFor appellants there was a brief with oral arguments by Mr. W. T. Vinton and Mr. Walter L. loose, Jr.\\nFor respondent there was a brief and an oral argument by Mr. B. A. Klihs.\", \"word_count\": \"4270\", \"char_count\": \"24617\", \"text\": \"BROWN, J.\\nThe trial court entered a judgment of nonsuit in favor of defendant and against plaintiffs because of the provision of Section 9, Chapter 399, Laws of Oregon, 1919, which provides that:\\n\\\"Upon the purchase of a motor vehicle registered in accordance with this act, the title of the number plates shall vest in the vendee, and said vendee shall within five days after the date of purchase notify the Secretary of State, stating his name and business address, the name of the vendor, the license or registration number and the engine number under which such motor vehicle is registered, upon the receipt of which information the Secretary of State shall transfer the said license or registration number to said vendee.\\n\\\"A fee of $1.00 shall be paid to the Secretary of State for each transfer, which transfer he shall file in his office and note upon the registration book or index. No sale or transfer of any motor vehicle registered under this act shall b\\\"e valid without compliance with the provisions of this section.\\\"\\nPlaintiffs, when they purchased the car, failed to give the Secretary of State the notice required by Section 9. In fact, they utterly ignored all the provisions contained in said section relating to the giving of notice, having the registration transferred, or any other matter or thing required by the terms of the provision quoted. They claim that as dealers in motor vehicles, and having secured a license as such dealers, they are not required to have the license mentioned in Section 9 transferred unless they intend to, and do, operate the transferred car upon the public streets and highways of the state, and that for the foregoing reasons they are not bound by the commands contained in said section of the Oregon Motor Vehicle Law. They contend that the requirement to notify the Secretary of State of the transfer or change of registration or payment of the fee is no concern of theirs, they being fully protected under their dealer's license. We do not agree with plaintiffs. The section of the law under consideration contains no exemptions, no exceptions. The car in the instant case was a registered car, duly licensed to operate upon the public highways of the state. The law demands a report of the sale of a registered vehicle, and a particular method of keeping the record of its transfer is provided. The identity and ownership of cars operated upon the public ways is of concern to the state. The law distinctly denounces the failure to report the sale of a registered vehicle in the following language:\\n\\\"No sale or transfer of any motor vehicle registered under this act shall be valid without compliance with the provisions of this section.\\\"\\nThese words are clear, plain, unambiguous, and manifestly mean what they say, and not something else. This provision of the statute is not open to construction. It interprets itself. While Section 9 renders a sale or transfer of a registered car invalid upon failure to comply with its provisions, it does not make a compliance therewith prima facie evidence of the ownership of the property in a car so registered as indicated by defendant. The court properly held that plaintiffs were bound by the terms of the statute, in this: that the sale of the vehicle was invalid. Nevertheless, they had such a special interest in the car that the law authorizes them to maintain an action for its possession. The vehicle was not cast out from the protection of the law by reason of the plaintiffs' failure to observe the statute. The car was property when it was sold; property when the action was instituted; it is property now. Although plaintiffs' title became defective, they came into possession of the car by lawful means. In acquiring its possession, they committed no act of omission or commission that suggests crime or wrong.\\nIn an action of claim and delivery under an allegation of general ownership, the plaintiff may prove a special property entitling him to possession. This principle of law is declared by Mr. Justice Burnett, and supported by much authority, in Goodwin v. Tuttle, 70 Or. 429 (141 Pac. 1120, 1122), wherein he wrote:\\n\\\"It has been held in this state in several cases that in replevin under the allegation of general ownership the plaintiff may prove a special property entitling him to possession: Reinstein v. Roberts, 34 Or. 87 (55 Pac. 90, 75 Am. St. Rep. 564); Backhaus v. Buells, 43 Or. 558 (72 Pac. 976, 73 Pac. 342); Culver v. Randle, 45 Or. 491 (78 Pac. 394); Harvey v. Lidvall. 48 Or. 558 (87 Pac. 895); Swank v. Elwert, 55 Or. 487 (105 Pac. 901); Roberson v. Ellis, 58 Or. 219 (114 Pac. 100).\\\"\\nMr Justice McCamant, in Swank v. Moisan, 85 Or. 669 (166 Pac. 962, 964), has said:\\n\\\"The sale of plaintiff's automobile became invalid ten days after the date of sale by operation of this statute. There being nothing immoral or unlawful in the contract of the parties, the law will not leave them where it finds them. Plaintiff could replevy his automobile and recover the value of its use by the defendants.\\\"\\nAnd authorities there cited.\\nThe court should have admitted Plaintiffs' Exhibit 1 as evidence; likewise, should have permitted proof showing the circumstances of the transfer of the possession of the car from plaintiffs to Seabrook & Company. The failure so to do prejudiced the substantial rights of plaintiffs.\\nPlaintiffs allege that the Oregon Motor Vehicle Law is unconstitutional by reason of the fact that Section 44 thereof declares an emergency and therefore contravenes Section 1-a of Article IX of the Constitution of Oregon providing that:\\n\\\" The legislative assembly shall not declare an emergency in any act regulating taxation or exemption.\\\"\\nOf course, the legislative assembly should never declare an emergency when enacting any law regulating taxation or exemption therefrom. Such is the mandate of the Constitution. But plaintiffs are not in a position to raise that question. The period of 90 days provided by Section 28, Article IV, Constitution, suspending the operation of a law, had expired prior to plaintiffs' deal with Seabrook & Company. It is now, and at the time of the attempted transfer of the motor vehicle in question was, a valid law. The only effect the nonobservance, if it be such, of the provision of the Constitution referred to, could have in the instant case, would be to eliminate Section 44 of the Motor Vehicle Law, containing the emergency clause.\\nAnother fact that stands in plaintiffs' way and prevents them from availing themselves of the prohibition contained in the Constitution is, that the statement of law contained i\\u00fc Section 9 of the Oregon Motor Vehicle Law is not a new statute. It has been the law of this state since 1911 and in effect at all times since then. As stated in Renshaw v. Lane County Court, 49 Or. 526 (89 Pac. 147):\\n\\\"A re-enactment of a former statute is considered as a continuation of the language so repeated, and not a new enactment as of that date.\\\"\\nThe provision that the Secretary of State have notice of the sale and transfer of a registered motor vehicle, and, in the absence of such notice, that the sale or transfer of such motor vehicle registered under the motor vehicle law shall not be valid, is not a new legislative declaration, but is a restatement or republication of the law as it has existed since the enactment of Section 8 of Chapter 174, Laws of Oregon, 1911. Said Section 9 is a literal copy of Section 8, Laws of 1917, which, in substance, is Section 8 of Chapter 174, Laws of 1911. Hence, the plaintiffs are not in a position to say that Section 9 of the 1919 law is invalid or that they are not bound by the terms of said section for the reasons alleged.\\nIt was stated by Mr. Justice Lord in an opinion rendered by this court in Elliott v. Oliver, 22 Or. 44 (29 Pac. 1), that:\\n\\\"This court will avoid deciding upon the constitutionality of a statute whenever there appears in the record any other grounds sufficient to sustain a proper disposition of the case in judgment.\\\"\\nAmong other citations, he quotes with approval the following excerpt from Cooley's Constitutional Limitations :\\n\\\"Where a constitutional question is raised, though it may be legitimately presented by the record, yet if the record present some other and clear ground upon which the court may rest its judgment, and thereby render the constitutional question immaterial to the case, that course will be adopted and the question of constitutional power will be left for consideration until a ease arises which cannot be disposed of without considering it, and when consequently a decision upon such question will be unavoidable.\\\"\\nTo like effect see State ex rel v. Lord, 28 Or. 530 (43 Pac. 471, 31 L. R. A. 473); State ex rel. v. Malheur County, 46 Or. 519 (81 Pac. 368); McKinney v. Watson, 74 Or. 220 (145 Pac. 266).\\nWhile not deciding as to the constitutionality of the question raised for the reasons hereinbefore stated, we will make the following observations in reference to plaintiffs' assertion that the license fees exacted by the Oregon Motor Vehicle Law are too high and are unreasonable, and cannot be sustained under the exercise of the police power of the state:\\nSection 42 of the Motor Vehicle Law declares its provisions to be an exercise of the police power of the state. In Portland v. Portland Ry. L. & P. Co., 80 Or. 305 (156 Pac. 1058), the following excerpt from Gray, Lim. of Tax. Power, 42, is quoted with approval:\\n\\\"While not absolutely controlling, the legislative designation is an important factor in determining the character of the tax imposed.\\\"\\nAs appears from the preamble of the statute, the members of the Oregon legislature, before enacting the Motor Vehicle Law, carefully informed themselvefe concerning the effect of the use of motor vehicles, upon the highways of the state.\\nWhile a preamble is no part of a statute, it is of importance in gathering the reasons for the passage of such an act as we have under consideration.\\n\\\"A preamble is an introduction prefixed to a statute, reciting the intention of the legislature in framing it, or the evils which led to its enactment. It is no part of the law. It is evidence of the facts it recites\\\": Bouvier's Law Dictionary.\\nIn Hendrick v. Maryland, 235 U. S. 622 (59 L. Ed. 385, 35 Sup. Ct. Rep. 142, see, also, Rose's U. S. Notes), it is held:\\n\\\"The movement of motor vehicles over the highways is attended by constant and serious dangers to the public, and is also abnormally destructive to the ways themselves. Their success depends on good roads, the construction and maintenance of which are exceedingly expensive; and in recent years insistent demands have been made upon the states for better facilities, especially by the ever-increasing number of those who own such vehicles. As is well known, in order to meet this demand and accommodate the growing traffic the State of Maryland has built and is maintaining a system of improved roadways. Primarily for the enforcement of good order and the protection of those within its own jurisdiction the state put into effect the above-described general regulations, including requirements for registration and licenses. A further evident purpose was to secure some compensation for the use of facilities provided at great cost from the class for whose needs they are essential, and whose operations over them are peculiarly injurious.\\\"\\nThe Supreme Court of Ohio, in Allen v. Smith, 84 Ohio St. 294 (95 N. E. 832, Ann. Cas. 1912C, 611), has said:\\n\\\"Doesn't everybody know that the automobile is a new machine of travel; its use a new use of the highway; that it is dangerous to other travelers; that its power, its capacity for speed, the temptation it affords the reckless driver to operate it at a dangerous rate and in a careless manner, all distinguish the automobile from all other vehicles? Surely it cannot be necessary to further elaborate this fact so patent to every observing and reading person. The automobile is, therefore, a class by itself, the users of such machines a class by themselves, and legislation in recognition of this condition is based upon a solid, easily recognized distinction.\\\"\\nIn Westfalls Storage Co. v. Chicago, 280 Ill. 318 (117 N. E. 439), the court said:\\n\\\"Motor vehicles have been classified separately from horse-drawn vehicles and have been the subject of separate legislation ever since they came into general use. Their departure in character, use, and speed from horse-drawn vehicles has been so great as to justify such classification. These ponderous vehicles, driven by powerful engines, are a menace to the public safety unless managed and driven by persons who are competent and qualified to operate them. Those used for transporting heavy merchandise are practically engine-driven freight cars. The separate classification of motor vehicles, so far as we are advised, has always been upheld by decisions and textbooks as reasonable. (See as bearing on this question, Jackson v. Neff, 64 Fla. 326 (60 South. 350); State v. Swagerty, 203 Mo. 517 (102 S. W. 483, 12 Am. St. Rep. 671, 10 Ann. Cas. 725, 10 L. R. A. (N. S.) 601); State v. Finch, 78 Minn. 118 (80 N. W. 856, 46 L. R. A. 437); Babbitt on Motor Vehicles (2 ed.), \\u00a7 177; McQuillin on Mun. Ordinances, \\u00a7 424.) \\\"\\nTo the effect that classification based on horse-power is proper, see Hendrick v. Maryland, 235 U. S. 622 (59 L. Ed. 385, 35 Sup. Ct. Rep. 142). Likewise, see Lillard v. Melton, 103 S. C. 10 (87 S. E. 421); Heartt v. Downer's Grove, 278 Ill. 92 (115 N. E. 869); Smith v. Commonwealth, 175 Ky. 286 (194 S. W. 367); also case of Kane v. New Jersey, 242 U. S. 160 (61 L. Ed. 222, 37 Sup. Ct. Rep. 30), where the court, speaking through Mr. Justice Brandeis, said:\\n\\\"The power of a state to regulate the use of motor vehicles on its highways has been recently considered by this court and broadly sustained. It includes the right to exact reasonable compensation for special facilities afforded, as well as reasonable provisions to insure safety. And it is properly exercised in imposing a license fee graduated according to the horse power of the engine: Hendrick v. Maryland, 235 U. S. 610 (59 L. Ed. 385, 35 Sup. Ct. Rep. 140).\\\"\\nIt was held in Jasnowski v. Board of Assessors, 191 Mich. 287 (157 N. W. 891), that:\\n\\\"What classes of property shall be taxed and what shall be exempted except as restricted by the constitution is a question that rests within the discretion of the legislature. It is within legislative authority to exempt from other forms of taxation, property which pays a specific tax, whether or not the tax is levied on the property itself or on the right to use it in a certain way.\\\"\\nIn Rast v. Van Deman & Lewis, 240 U. S. 357 (60 L. Ed. 679, Ann. Cas. 1917B, 455, L. R. A. 1917A, 421, 36 Sup. Ct. Rep. 374), speaking through Mr. Justice McKenna, the court said:\\n\\\"It is established that a distinction in legislation is not arbitrary, if any state of facts reasonably can be conceived that would sustain it, and the existence of that state of facts at the time the law was enacted must be assumed: Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 78 (55 L. Ed. 369, Ann. Cas. 1912C, 160, 31 Sup. Ct. Rep. 337). It makes no difference that the facts may be disputed or their effect opposed by argument and opinion of serious strength. It is not within the competency of the courts to arbitrate in such contrariety: Chicago, B. & Q. R. R. v. McGuire, 219 U. S. 549 (55 L. Ed. 328, 31 Sup. Ct. Rep. 259); German Alliance Ins. Co. v. Kansas, 233 U. S. 389, 413, 414 (58 L. Ed. 1011, 1022, L. R. A. 1915C, 1189, 34 Sup. Ct. Rep. 612); Price v. Illinois, 238 U. S. 446, 452 (59 L. Ed. 1400, 1405, 35 Sup. Ct. Rep. 892).\\n\\\"It is the duty and function of the legislature to discern and correct evils, and by evils we do not mean some definite injury but obstacles to a greater public welfare: Eubank v. Richmond, 226 U. S. 137, 142 (57 L. Ed. 156, Ann. Cas. 1914B, 192, 42 L. R. A. (N. S.) 1123, 33 Sup. Ct. Rep. 76); Sligh v. Kirkwood, 237 U. S. 52, 59 (59 L. Ed. 835, 837, 35 Sup. Ct. Rep. 501). And, we repeat, 'It may make discriminations if founded on distinctions that we cannot pronounce unreasonable and purely arbitrary': Quong Wing v. Kirkendall, 223 U. S. 59, 62 (56 L. Ed. 350, 32 Sup. Ct. Rep. 192), and cases cited above.\\\"\\nThe existence of the necessity for requiring a privilege tax for the operation of the vehicles described in the Oregon Motor Vehicle Law upon the highways of the State of Oregon, and the authority to say what constitutes a reasonable tax for such privilege, is for the determination of the law-making power of the state. We cannot say that the license fee exacted for the privilege of operating motor vehicles upon the highways of this state is unreasonable. It is common knowledge that 103,790 vehicles have been registered under the provisions of the motor vehicle law of this state for the year just closed. They are driven over the highways of Oregon and their operations have caused immense damage to the roads of the state. Millions of dollars have been expended by this state and millions more will be expended in the future, for the construction and maintenance of highways, chiefly for the operation of motor vehicles. In this modern age the highways are chiefly used by the automobile, and it should pay, in a large measure, for their construction and destruction.\\n\\\"The imposition is a license or privilege tax charged in the nature of compensation for the damage done to the roads by the driving of these machines over them, and is properly based, not upon the value of the machine, but upon the amount of destruction caused by it\\\": Kane v. State, 81 N. J. Law, 594 (80 Atl. 543, Ann. Cas. 1912D, 237, L. R. A. 1917B, 553); In re Kessler, 26 Idaho, 764 (346 Pac. 113, Ann. Cas. 1917A, 228, L. R. A. 1915D, 322).\\nA valuable case is Ard v. People, 66 Colo. 480 (182 Pac. 893), citing Atkins v. State Highway Department (Tex. Civ. App. 1918), 201 S. W. 226; Ex parte Hoffert, 31 S. D. 271 (118 N. W. 20, 52 L. R. A. (N. S.) 919; In re Kessler, 26 Idaho, 761 (116 Pac. 113, Ann. Cas. 1917A, 228, L. R. A. 1915D, 322); State v. Lawrence, 108 Miss. 291 (66 South. 715, Ann. Cas. 1917E, 322); Kane v. State, 81 N. J. Law, 591 (80 Atl. 153, Ann. Cas. 1912D, 237, L. R. A. 1917B, 553); Berry on Automobiles, \\u00a7 91; likewise, the case of State v. Collins, 91 Wash. 312 (162 Pac. 556), and authorities there cited; State ex rel. Fargo v. Wetz, 10 N. D. 299 (168 N. W. 835, 5 A. L. R. 731, and valuable note).\\nFor failure to admit the testimony hereinbefore referred to, this case is reversed and remanded.\\nReversed and Remanded. Rehearing Denied.\\nBenson and Johns, JJ., concur.\\nBean, J., concurs in the result.\"}"
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+"{\"id\": \"4860909\", \"name\": \"MILLER et ux v. BARKER et ux\", \"name_abbreviation\": \"Miller v. Barker\", \"decision_date\": \"1962-12-31\", \"docket_number\": \"\", \"first_page\": \"113\", \"last_page\": \"127\", \"citations\": \"233 Or. 113\", \"volume\": \"233\", \"reporter\": \"Oregon Reports\", \"court\": \"Oregon Supreme Court\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T18:03:57.579868+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before McAllister, Chief Justice, and Warner, Sloan, O\\u2019Connell and Lusk, Justices.\", \"parties\": \"MILLER et ux v. BARKER et ux\", \"head_matter\": \"Argued November 8,\\nreversed and remanded December 31, 1962\\nMILLER et ux v. BARKER et ux\\n377 P. 2d 343\\nWilliam B. Wyllie, Salem, argued tbe cause for appellants. With Mm on the briefs were Rhoten, Rhoten & Speerstra, Salem.\\nEdward L. Clark, Jr., Salem, argued the cause for respondents. With him on the brief were G-oodenough, Clark & Marsh, Salem.\\nBefore McAllister, Chief Justice, and Warner, Sloan, O\\u2019Connell and Lusk, Justices.\", \"word_count\": \"3781\", \"char_count\": \"22373\", \"text\": \"WARNER, J.\\nMillers, as plain tiffs-vendees, bring this suit for a rescission of a contract to buy a motel and furnishings, situated at Detroit, Oregon, and for restitution of money paid. Prom a decree of rescission and judgment for $11,755.23, Barkers, as defendants-vendors, appeal.\\nPlaintiff Donald G. Miller is a man 35 years of age, who was a factory worker until 1954. After that year he worked in the Los Angeles area as a carpenter and became a licensed contractor for two years. In 1960 he came to Salem with his wife. Two days after arrival, on July 28, 1960, they went to Detroit to examine the Barker motel, which they learned about through an advertisement which they had seen in California. Mr. Barker showed Mr. Miller the general layout and Mrs. Barker showed him briefly two or three rooms. Miller observed that the place was good looking and neatly kept.\\nThe following day the parties met at the office of Barker's then attorney, in Salem, and executed an earnest money receipt for a purchase price of $48,000, of which $4,000 was to be paid in cash and $6,500 upon the sale of Miller's house in Los Angeles. Millers paid $1,000 at the time of signing the receipt.\\nIn due course a contract was executed by the parties and the stipulated cash down payments were made. As stated in the contract, the balance was to be paid at the rate of $400 per month, plus accrued interest, for the months of September, October and the months of March to September. For the four months of November to February, inclusive, the principal payments were reduced to $200 per month.\\nMillers went into possession and started operating the motel on August 14, 1960.\\nAbout November 18, 1960, Miller experienced difficulty in making the required payments and Barker agreed to an extension of time to September, 1961, for the payments due in the months of December, 1960, and for the months of January, February and March, 1961, with a proviso that interest would be paid each month, as provided in the contract.\\nOn May 12, 1961, plaintiffs contacted an attorney with reference to the instant matter and a few days before May 26, 1961, for the first and only time, plaintiffs protested to defendants the misrepresentations which they presently rely upon. On the date last mentioned and acting on the advice of their counsel, the Millers returned to the Barkers the keys to the motel and informed them they were rescinding the contract and abandoning the motel. Defendants thereafter immediately went into possession of the motel property and have operated the same ever since. Millers filed their complaint in this suit on May 31, 1961. This was five days after their declaration of rescission and delivery of keys to the Barkers. But before doing so, they collected rents currently due from their motel operation.\\nIn their complaint the Millers allege that the Barkers were guilty of four different misrepresentations which entitle them to rescind. However, in their brief they confine their argument to two: the alleged mis representation as to the motel's income and the claim of a misrepresentation respecting the condition and repair of the buildings; namely, the rot found under the floors of certain units.\\nThe defendants, on July 20, 1961, filed an answer in general denial with a further and separate answer seeking to foreclose the contract. Plaintiffs made reply alleging that the defendants had acquiesced and agreed to plaintiffs' notification of rescission given on May 26 by immediately going into possession of the motel and thereafter operating the same.\\nBefore giving attention to the sufficiency of the misrepresentations claimed by plaintiffs in support for their rescission, we will first dispose of their motion for a dismissal of defendants' appeal and then their contention respecting defendants' acquiescence in plaintiffs' rescission as disclosed by their reply.\\nSometime prior to oral argument in this matter, plaintiffs filed a motion to dismiss defendants' appeal. The motion was grounded on the representation that defendants had evidenced an intent to accept and accede to the terms of the decree. The motion to dismiss was then denied with leave to renew at the time of presenting plaintiffs' argument on the merits, and this plaintiffs elected to do.\\nThe Barkers were living across the street from the motel when it was abandoned by the Millers in May, 1961.\\nPlaintiffs argue that the possession and operation of the motel by the Barkers evidences an acceptance of the decree and that the appeal should be dismissed on the authority of Kellogg v. Smith, 70 Or 449, 142 P 330 (1914), and Lange v. Devlin, 80 Or 238, 156 P 260 (1916).\\nThe Kellogg and Lange cases are distinguishable from the case at bar. In both, the vendors were defendants in suits to rescind contracts. But in those cases the vendor's objectionable \\\"dealing\\\" with the property occurred after the trial court had entered a decree of rescission and while an appeal was pending. Both cases used substantially the following language:\\n\\u00ed\\u00ed it is apparent that the defendant used and dealt with the mortgaged property as though he then intended freely to accept and accede to the terms of the decree rendered herein, and, such being the case, he will not be permitted now to change the position which he voluntarily assumed, and is estopped from asserting a different attitude (Kellogg v. Smith, supra, at 456, and see Lange v. Devlin, supra, at 239.)\\nHere, the defendants Barker resumed possession of the motel before the decree was rendered by the trial court. That this is a distinction which removes the present case from the early strict rule of Kellogg and Lange is recognized in the later cases of Fluhrer v. Bramel, 158 Or 694, 72 P2d 47, 73 P2d 265, 77 P2d 824 (1938); and Lewis v. Shook, 182 Or 483, 188 P2d 148 (1947).\\nFluhrer was an action for rescission of a contract for the sale of a service station. The vendor appealed from a decree in favor of the plaintiff-vendee. The plaintiff moved to dismiss the appeal for the reason that the defendant had acquiesced in the decree in that he had leased the service station to a third party. The court dismissed the appeal on the authority of the Lange case, supra. However, upon petition for rehearing, the court said:\\n\\\" it is shown that the lease from [the vendor] W. E. Bramel to [the third party] was made before the decree of the lower court was rendered in the above entitled case. For this reason the order dismissing the appeal taken by Bramel will be set aside.\\\" (158 Or 694, 699-700)\\nLewis v. Shook, supra, is even more nearly in point. In that case Lee contracted to sell some property of Shook, who then contracted to sell part of the property to one Lewis. Lewis took possession and then, desiring to rescind, and fearing that continued possession might stand in his way, quit possession, whereupon Shook resumed possession. Lewis brought an action for declaration of rights under the contracts for the sale of land, and Shook appealed from the judgment. Lewis moved to dismiss the appeal, one of his grounds being Shook's act of taking possession and using the premises. This court disposed of plaintiff's contention as follows:\\n\\\"The record is clear that appellants' possession of the premises involved commenced prior to the rendition of the decree and, for that reason, does not constitute an acquiescence in the decree. Fluhrer v. Bramel (Lewis v. Shook, supra (182 Or at 491))\\nIt, therefore, appears clear that when a vendee voluntarily quits the premises and the vendor resumes possession prior to the rendition of a decree of rescission in favor of the vendee, the vendor's resumption of possession does not in itself evidence such an acceptance of the decree as will prejudice the vendor's right to appeal from the decree.\\nPlaintiffs in their brief affirm defendants' right to act in any limited and reasonable way to protect the property. Our knowledge concerning defendant's activities subsequent to the entry of the decree is, however, limited to what is stated in the affidavit given in support of the motion. The activities of the defendants as therein revealed appeal to us as consistent with what is reasonable for the protection and maintenance of property of its kind and uses. Moreover, there is no suggestion in the record that the Barkers at any time entered into any agreements with third parties concerning the property before or after the entry of the decree, as did the vendors in the cases above mentioned. Nor is there any evidence to show how or to what extent, if any, the Millers would be damaged, or even inconvenienced, by the repairs and slight changes made by the Barkers if they had redeemed the property or resumed possession. Morrison v. Kandler, 215 Or 489, 505, 334 P2d 459 (1959).\\nThe motion to dismiss the appeal is denied.\\nWe now address ourselves to plaintiff's contention that the Barkers acquiesced in Miller's acts of rescission and which, if true, would preclude the Barkers from the right to foreclose the contract or declare a forfeiture thereunder.\\nThe contention respecting the acquiescence of the Barkers is predicated solely upon Miller's declaration of rescission made at defendants' home May 26, 1961, and the fact that Barkers thereafter took possession of the motel and continued to operate it. From that, and that alone, the Millers attempt to glean an implied acceptance or acquiescence in plaintiff's offer to rescind. We add: a part of Millers' notice of rescission at that time included advice that he had an attorney and Barker \\\"would be hearing from him.\\\" And the Barkers did, for five days thereafter the Millers filed their complaint in the instant matter.\\nPlaintiffs place reliance on two recent decisions of this court: Morrison v. Kandler, 215 Or 489, 334 P2d 459 (1959), and Nygaard v. Anderson, 229 Or 323, 366 P2d 899 (1961).\\nIn both cases suits were brought by a vendor for strict foreclosure, and in both cases, shortly after each suit was filed, the vendees voluntarily vacated the premises, and the vendors thereupon resumed possession. The court in the Nygaard case (at 329) declared the sole issue to be: \\\"whether plaintiffs' talking possession of the premises was wrongful and, therefore, constituted a repudiation of the contract entitling defendant to 'rescind.' \\\" The court found that the vendors' act of resuming possession did not amount to a repudiation of the contract, saying:\\n\\\"* # * the resumption of possession of the premises by vendor does not ipso facto constitute a forefeiture of the contract. Morrison et al v. Kandler et ux, 215 Or 489, 334 P2d 459 (1959) teaches us that the vendor's resumption of possession after filing a suit for strict foreclosure may, in the proper ease, be consistent with his intent to affirm the contract until the decree of foreclosure is entered. The court said:\\n\\\" i\\u00ae In determining whether the vendors repudiated the contract after they resumed possession, the test is whether their conduct evinced an intention to no longer be bound by the contract.' Id. at 508, 334 P2d at 467.\\nThe court held that the vendors' repossession under the circumstances was not a repudiation of the contract.\\\" (229 Or at 329-330)\\nThe Washington court held in a case similar in many respects to the one at bar:\\n\\\" where the vendee has abandoned the property, such acts on the part of the vendor, under a contract containing a forfeiture clause, and of which time is the essence, are not sufficient to consummate a mutual rescission. Rafferty v. Gaston, 118 Wash. 689, 204 P. 595, 596. \\u2022\\\" (Roethemeyer v. Milton, 187 Wash 582, 60 P2d 694, 696 (1936)).\\nSee, also, 91 CJS 1087, Vendor & Purchaser \\u00a7 140c; Hart v. Stickney, 41 Wis 630, 637, 22 Am Rep 728 (1877), where the court said: \\\"that the mere act of taking possession by the vendor would operate to rescind the contract and discharge all obligations, is a proposition which we think cannot be maintained Nelson v. Hoff, 70 Idaho 354, 218 P2d 345, 349 (1950); Dooley v. Stillson, 46 RI 332, 128 A 217, 219, 52 ALR 1505 (1925), and cases cited therein; Lake v. Bernstein, 215 Iowa 777, 246 NW 790, 793-794, 102 ALB 846 (1933); Sanders v. Brock, 230 Pa 609, 79 A 772, 774, 35 LRA (NS) 532 (1911): \\\"It would be an alarming doctrine to hold that the plaintiffs [vendees] might violate the contract; and, because they chose to do so, make their own infraction of the agreement the basis of an action for money had and received. Every man who makes a bad bargain, and has advanced money upon it, would have the same right to recover it back that the plaintiffs [vendees] have.\\nIf the plaintiffs' attempt at rescission was wrongful, the plaintiffs were the ones who repudiated the contract and voluntarily surrendered the property. If a purchaser repudiates the contract without cause, or attempts to do so after he has lost his right by undue delay, as we hereinafter hold that the Millers did, and surrenders the property, a vendor, who has resumed possession and elected to sue for foreclosure, is given a reasonable latitude in operating the property pending the final determination of the suit. Morrison v. Handler, supra (215 Or at 506); Nygaard v. Anderson, supra (229 Or at 329-330).\\nIn determining whether the Barkers repudiated the contract after they resumed possession, the test is whether their conduct evinced an intention to no longer be bound by the contract. Morrison v. Kandler, supra, at 508; Nygaard v. Anderson, supra, at 330. Here, our task is made less difficult than in the Nygaard case because the plaintiffs rely solely upon the fact of Barkers' repossession and operation, which we have noticed does not in and of itself constitute a forfeiture of the contract on their part. Moreover, they were informed by Miller on the day of his departure that the Barkers would hear from his attorney, a statement tantamount under the circumstances that his oral claim of rescission would be resolved into a subsequent suit, as it was five days later, and wherein the Barkers by their answer sought a foreclosure of the Miller interest.\\nThere is no evidence here, nor claim made by plaintiffs, that the occupation and operation of the motel after May 25, 1961, was in any way inconsistent with their right to foreclose or which in any way infringed upon or prejudiced the rights of plaintiffs or barred their right to hold possession during the pendency of the instant litigation. See Morrison v. Kandler, supra (215 Or at 505).\\nAssuming that the various misrepresentations were made by the Barkers as alleged by plaintiffs, it is our conclusion that the plaintiffs have forfeited their right to rescind by (a) their delay for an unreasonable length of time after acquiring knowledge of the vendors' misrepresentations and (b) after the acquisition of such information, by conduct affirming the transaction.\\nIt was the testimony of Mr. Miller that their first knowledge of some rot was in the under support of the floors of two motel units and was attained about November 1, 1960. Sometime before November 18, 1960, they found they were having difficulty making their payments under the contract. On that date they importuned the Barkers for an extension of time to make current and future payments. This request, as we have earlier noticed, was granted. Thus, between about November 1 and November 18, and within approximately three months after going into possession, facts developed which informed the plaintiffs that there was a rot problem and that the motel would not produce the income as allegedly represented by the vendors.\\nIn spite of these facts and later discoveries of rot under the floors and lower income than expected, the plaintiffs did not make any complaints to the Barkers until three or four days before giving the vendors notice of their intention to vacate and rescind, or approximately six months thereafter.\\nThe time and circumstances which first brought the alleged misrepresentations of the defendants to notice render it appropriate to again cite the governing rule as first stated in this jurisdiction by Mr. Justice Robert S. Bean in Scott v. Walton, 32 Or 460, 52 P 180 (1898), and thereafter frequently cited. It is found at 464:\\n\\\"A party who has been induced to enter into a contract by fraud, has, upon its discovery, an election of remedies. He may either affirm the contract, and sue for damages, or disaffirm it, and be reinstated in the position in which he was before it was consummated. These remedies, however, are not concurrent, but wholly inconsistent. The adoption of one is the exclusion of the other. If he desires to rescind, he must act promptly, and return or offer to return what he has received under the contract. He cannot retain the fruits of the contract awaiting future developments to determine whether it will be more profitable for him to affirm or disaffirm it. Any delay on his part, and especially his remaining in possession of the property received by him under the contract, and dealing with it as his own, will be evidence of his intention to abide by the contract: Schiffer v. Dietz, 83 N.Y. 300; Parmlee v. Adolph, 28 Ohio St. 10; Williamson v. New Jersey S. R. R. Co., 29 N. J. Eq. 311; Wicks v. Smith, 21 Kan. 412 (30 Am. Rep. 433); Marston v. Simpson, 54 Cal. 189.\\\"\\nA corollary to the foregoing rule is that:\\n\\\"Any action on the part of the purchaser treating an executory contract as in force, when done with the knowledge of facts creating a right to rescind, amounts to a waiver of the right to rescind because of the existence of such facts: (Union Sav. & Loan Assn. v. Getty, 135 Or 565, 569, 296 P 878 (1931)).\\nThe course of conduct which the plaintiffs followed after their first knowledge in November of defendants' alleged misrepresentations, in addition to the modification of the contract negotiated November 18 and referred to above, confirms that they come within the ambit of the rules laid down in the Scott and Union Sav. & Loan Assn, cases.\\nNotwithstanding the finding of further evidence of rot in December, 1960, and again the following February and the latter part of March or early April, Miller testified he had decided to keep his bargain, hoping the motel business would pick up in the spring.\\nOn March 22, 1961, Mr. Miller listed the motel property for sale at a selling price of $55,000, wherein he represented the property to be in good condition 'inside and out\\\" and told the realtor that the receipts for the past 12 months exceeded $8,000. He gave as his reason for selling that he had other interests.\\nHaving obtained knowledge of the various matters upon which the plaintiffs predicate their right to rescission long before the listing made in March, they are entitled to the same condemnation which the court applied to the vendee Belanger in Belanger v. Howard, 166 Or 408, 112 P2d 1022 (1941). After noting that the plaintiff in that case had made several attempts to sell the property and in a newspaper advertisement had made a recital of details respecting it which corresponded to the very alleged misrepresentations which Belanger later employed in his complaint for rescission, the court observed at 418:\\n\\\" He came to a court of equity claiming that he had been victimized. Nothing less than frankness should have been manifested by him. In his efforts to prove that he had been defrauded he should not have come forth as a willing perpetrator of fraud upon others. By his own conduct the plaintiff so discredited himself that we are unwilling to believe his charges of fraud.\\\"\\nHere, Mr. Miller in the real estate listing and by his advice to the realtor extended himself beyond the alleged misrepresentations of defendants. While Millers' course in this particular is not conclusive evidence of a waiver of vendees' right to rescind or their intention to abide by the contract (Schuler v. Humphrey, 198 Or 458, 480, 257 P2d 865 (1953)), we deem it very persuasive under the circumstances present in the instant matter and embrace it as a serious challenge to the credibility of his testimony.\\nBy their negotiation for the extension of time for payments required by the purchase contract and consummated November 18, 1960, plaintiffs brought themselves within the boundaries of another familiar rule, well stated in Conzelmann v. N. W. P. & D. Prod. Co., 190 Or 332, 225 P2d 757 (1950), where we said at 354:\\n\\\" when one who has been induced by fraud to enter into a contract, subsequently, with knowledge of the fraud, enters into another agreement respecting the same transaction with the one guilty of the fraud, he, the injured party, thereby waives and relinquishes all right to damages on account of such fraud. \\\"\\nAlthough plaintiffs were in default in making the monthly payments required by the contract, they continued to make some payments from time to time and as late as April 26, 1961, gave the Barkers their check for $181.50. This is evidence of an affirmance of the contract. Cameron v. Strong, 222 Or 250, 254, 352 P2d 560 (1960); Union Sav. & Loan Assn. v. Getty, supra (135 Or at 569).\\nWe also note as evidence of their continuing satisfaction with their bargain, the Millers, on April 15, 1961, entered into a contract to purchase from the Barkers for $13,000 a trailer court adjacent to the motel and operable in conjunction with it. Mr. Miller testified that at that time he was ready and willing to complete his contract for the motel and three days later purchased an additional year's insurance on the motel in the amount of $210.29.\\nThese and other matters not alluded to confirm our opinion that the Millers not only forfeited their right to rescind by delay, but also by their various acts confirmed the contract after they became cognizant of the misrepresentations of which they complain.\\nThe decree of the circuit court is reversed and the suit remanded for further proceedings not inconsistent herewith.\"}"
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+"{\"id\": \"4963050\", \"name\": \"GEORGIA-PACIFIC CORPORATION v. STATE TAX COMMISSION\", \"name_abbreviation\": \"Georgia-Pacific Corp. v. State Tax Commission\", \"decision_date\": \"1961-07-26\", \"docket_number\": \"\", \"first_page\": \"112\", \"last_page\": \"122\", \"citations\": \"228 Or. 112\", \"volume\": \"228\", \"reporter\": \"Oregon Reports\", \"court\": \"Oregon Supreme Court\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-11T00:50:40.437474+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before McAllister, Chief Justice, and Eossman, Warner, Perry, Sloan, O\\u2019Connell and Goodwin, Justices.\", \"parties\": \"GEORGIA-PACIFIC CORPORATION v. STATE TAX COMMISSION\", \"head_matter\": \"Argued May 5,\\naffirmed July 26,\\npetition for rehearing denied September 5, 1961\\nGEORGIA-PACIFIC CORPORATION v. STATE TAX COMMISSION\\n363 P. 2d 1104\\nNorman J. Wiener, Portland, argued the cause for appellants. With him on the briefs were Bing, Miller, Anderson, Nash & Terke, Jean Lowman, and John B. Crowell, Jr., all of Portland.\\nRichard Rink, Assistant Attorney General, Salem, argned the cause for respondent. With him on the brief was Eobert Y. Thornton, Attorney General, Salem.\\nBefore McAllister, Chief Justice, and Eossman, Warner, Perry, Sloan, O\\u2019Connell and Goodwin, Justices.\", \"word_count\": \"2593\", \"char_count\": \"15687\", \"text\": \"PEEEY, J.\\nWe have carefully examined the record in this case and after full consideration, being of the opinion that the following written opinion of the trial court fully expresses our views, it is adopted as the opinion of this court:\\n\\\"The Petitioners, Georgia-Pacific Corporation, and its' subsidiary, Coos Bay Timber Co., a corporation, were the owners of a sawmill and planing mill and a hardboard manufacturing plant in Bunker Hill, a sawmill in Millington, and a plywood plant and related facilities in Coquille, all in Coos County, Oregon, together with a timber supply to furnish said plants.\\n\\\"The above mills and plants and timber were purchased from the Coos Bay Lumber Company, a corporation, on July 10, 1956, and have since been operated by the petitioners more or less in conjunction with each other. This was particularly true of the sawmills in Bunker Hill and Millington.\\n\\\"During the year 1955 appraisals were made of these properties by appraisers of the State Tax Commission for the benefit of Coos County. The Chief Appraiser was Mr. Schuh who had had several years experience appraising industrial properties for the Tax Commission. Mr. Schuh did all, or practically all, of the appraising of the machinery and. equipment in the subject plants. Mr. Ensign, who was comparatively new with the Commission as an appraiser, did the principal part of the appraising of the buildings involved. However, he worked directly and constantly under the advice and supervision of Mr. Schuh, and all his appraisal work was checked and approved by Mr. Schuh.\\n\\\"The above mentioned properties were assessed by tax lot numbers and approximately 15 appeals taken thereon from the assessment by the assessor for the years 1957 and 1958 to the Board of Equalization of Coos County, which Board denied said appeals.\\n\\\"Appeal was then taken from the Board of Equalization rulings to the State Tax Commission. The appeal to this Court is from the ruling of the State Tax Commission, which lowered the overall assessments against the petitioners on the properties involved.\\n\\\"Before the Tax Commission and before this Court, the contested assessments were grouped as follows, and without reference to particular tax lot numbers:\\n\\\"For the year 1957\\n\\\"COQUILLE, OREGON\\nMachinery and equipment Buildings and improvements.\\nMILLINGTON, OREGON\\nMachinery and equipment only.\\nBUNKER HILL, OREGON Sawmill\\nMachinery and equipment Buildings and improvements\\nHardboard plant\\nMachinery and equipment Buildings and improvements.\\n\\\"For the year 1958 these same assessments were contested as for the year 1957 and with the addition for the year 1958 of buildings and improvements at Millington.\\n\\\"The Hearings Officer for the State Tax Commission took several hundred pages of testimony in the matter and some 49 exhibits were introduced, many of them quite voluminous, consisting of the work sheets, reports, etc., of the various appraisers.\\n\\\"The entire record made before the Hearings Officer was submitted to this Court together with briefs and oral arguments, but without any further testimony.\\n\\\"The Tax Commission by Opinion and Order No. VL 59-594, as above mentioned, lowered the overall assessment of the Petitioners for both years 1957 and 1958. They did increase particular parts of the 1957 assessment to conform generally to the appraisals as made by their appraisers in 1955, after making use of their depreciation and trending factors. They agreed with the Petitioners that assessor's figures for 1957 did not reflect 'true cash value.'\\n\\\"The petitioners by their petition and brief set out the primary issue as follows:\\n'Did the appraisals made by the administrative staff of the Commission in 1955, as brought up to date by the formula used by such staff, correctly arrive at the market value of the properties in question as of January 1, 1957 and January 1, 1958?'\\n\\\"They then set out in the brief ten (10) issues designated 'corollary issues' which will not be set forth verbatim herein.\\n\\\"The same matters stated in somewhat different language are contained in Petitioner's petition under 'Grounds for Petitioner's Contentions, Par. XVn.'\\n\\\"They then make two contentions under Par. XVIII and XIX, which they designate jurisdictional issues in their brief. XVIII alleges in effect that the Commission had no legal right or authority to raise the assessed valuations of the machinery and equipment of the Coquille plant for the year 1957.\\n\\\"Par. XIX alleges in effect that the Hearing Officer failed to make findings and conclusions as provided in ORS 306.535(1).\\n\\\"Taking up this first jurisdictional question first, it is clear that the Petitioners must fail on that particular issue. They offered no proof whatever to substantiate such a claim. The order VL 59-594, attached to the petition itself on the first page thereof shows that such findings and conclusions were prepared and reviewed by the entire Commission. There was no duty on the Commission to introduce such findings in this Court. The presumption is in favor of their order, including that part mentioning the findings. Nothing has been offered to overcome that presumption or to prove the above claim of the Petitioners that no findings were made.\\n\\\"Before taking up Petitioner's 'Primary issue', it is well to note that so far as the year 1957 was concerned, the real issue before the Tax Commission was whether or not the Assessor's assessment for that year was arrived at in the proper manner and whether it properly showed 'market value', 'true cash value' and 'assessed value.' The Commission found that it did not. I agree with their finding in that regard.\\n\\\"At best, it could be called a 'historical' value that had been carried for many years with some variations. It was founded to some extent at least on the values submitted by the owners or their predecessors, and carried on some kind of a verbal agreement, or at least acquiescence, by the taxpayers.\\n\\\"In fairness to the Assessor, it must be remembered that he did not have sufficient or suitable personnel to make a real appraisement and was attempting' to do his best under the conditions. He apparently did not have the 1955 appraisal at the time of the January 1, 1957 assessment. Just why is not clear. But at least he did not use it until January 1, 1958.\\n\\\"Chapter 306 ORS and following chapters give the State Tax Commission general supervisory power over the administration of assessment and tax laws and general supervision and control over the County Assessors and County Board of Equalization, with the general idea of seeing that all property is assessed and taxed according to law, to see that there is uniformity in assessments and equality of taxation.\\n\\\"In order to better secure this uniformity and equality, the law has wisely given the State Tax Commission the power to make and publish rules and regulations to effectively carry out the purposes for which it is constituted. Of course those rules and regulations must be in conformance with other laws.\\n\\\"There seems to be substantial agreement between the Petitioners and the Commission on the definition of 'market value' as generally used, both in tax and in condemnation cases.\\n\\\" 'Market value' is the amount Which property will bring if it was offered for sale by one who desired but was not obliged to sell, and was bought by one who was willing but not obliged to buy. This is substantially as set forth in State Highway Commission v. Superbilt Manufacturing Co., 204 Or 393, 281 P2d 707.\\n\\\" 'True cash value' is often used interehang\\u00e9ably with 'market value' and sometimes causes confusion as they might he the same or might vary. Appeal of Kliks, 158 Or 669, 689, 76 P2d 974.\\n\\\" 'True cash value' as defined by ORS 308.205(1)\\u2014 means the amount the property would sell for at a voluntary sale made in the ordinary course of business, under normal conditions, in accordance with rules and regulations promulgated by the State Tax Commission.\\n\\\"The State Tax Commission has determined that a normal conditions factor of 80% of the market value for the year 1957 and 90% for the year 1958 should be used to determine the 'true cash value.' The posted ratio for determining assessed value in Coos County for the years 1957 and 1958 was 23% of the true cash value.\\n\\\"The above percentages were used by both the Petitioners and the Commission to get from 'market value' to 'true cash value' and on to the \\\"Assessed Value.\\\"\\n\\\"The real crux of the Petitioner's Complaints, aside from the jurisdictional questions, seems to be the manner used by the Commission's appraisers in arriving at 'Market Values' and the amounts of 'Market Values' they arrived at.\\n\\\"The Commission by its regulations has set out the tests to be used to approximate market value when a market actually exists, and if a market is nonexistent these techniques will approximate the value to the owner. They are:\\n\\\"The Cost approach method or summation method.\\n\\\"The Income Approach or income capitalization method.\\n\\\"The Market Data approach or comparative method.\\n\\\"Without .quoting from the regulations, they then go into some detail, explaining the different methods, particularly as to structural improvements under the cost approach method.\\n\\\"In the regulations, they describe how to arrive at replacement cost of equivalent utility; depreciation, both by deterioration and obsolescence. Obsolescence includes either functional or economic causes. They then provide the two acceptable methods of estimating depreciation (which includes obsolescence by functional or economic causes), namely: observed condition and age-life methods.\\n\\\"In this ease the Petitioners called the Commission's appraisers, Mr. Schuh and Mr. Ensign, as well as the County Assessor as their own witnesses and examined, and really cross-examined, them in minute detail as to each item of property appraised.\\n\\\"While some answers were made to questions by Petitioner's counsel that would indicate that the Commission's appraisers merely got the reproduction cost of various parts less physical depreciation and added them up as a total to get the entire appraisal, a careful reading of the transcript of all their testimony gives a far different impression of their testimony.\\n\\\"It is clear from the testimony of Mr. Schuh, and the other witnesses, that they were unable to find comparable sales of going concerns in order to reach the market data approach. Most sales of any kind were for salvage or 'liquidation, or were interwoven with vast timber stands and other properties, as the petitioner's purchase of this property was, and the sale or purchase price was not available to the Commission's appraisers.\\n\\\"Likewise they were unable to reach the market value from the income approach, as that material was available only to the Petitioners, if they could segregate it themselves.\\n\\\"This Court finds that the Commission's appraisers made a fair and thorough appraisal of the properties and used the best method available to them to arrive at their market values.\\n\\\"The Petitioners offered three appraisers in addition to the Commission's appraisers. One of them testified to strictly salvage value, for all the plants, stating that in his opinion their market value was synonymous with their salvage value. This method was an improper way to evaluate a going plant.\\n\\\"Another of Petitioner's appraisers, Mr. Thompson, a man of considerable experience in the timber industry, gave his opinion of market values, and exactly the same values as the Petitioners use in their petition, based primarily on his years of experience. He gave very few specific reasons for his figures. He did state that the big sawmill at Bunker Hill had a market value for salvage value only. This, in spite of the fact that at the trial and for many years prior thereto and thereafter, that mill was in continuous operation on at least a two shift a day basis. He apparently ignored the fact that hundreds of thousands of dollars in new equipment and modernization had been placed in the mill.\\n\\\"It is noticeable that this witness values the Bunker Hill Sawmill machinery and equipment at only $431,600.00 for 1957, even less than Mr. Carroll had testified it was worth for salvage.\\n\\\"The Petitioner's next appraiser, Mr. Stewart, gave \\u00e1 set of values which totaled quite close to Mr. Thompson's overall appraisal, but he used many factors which this Court feels should not be used in determining market value under our tax laws and regulations.\\n\\\"It is noticeable that in his appraisal of the buildings at the Millington mill he gave there a value of $4,000.00 for 1958. Even the Petitioners themselves on Page 7 of their petition set their value at $181,000.00. The evidence shows them to be large truss type, newly constructed buildings, and well maintained. There were serious defects in all the Petitioner's appraisals.\\n\\\"Considering all the evidence in the case, I am of the opinion that the Petitioners have failed to show that the values set forth in Tax Commissioner's Order No. VL 59-594 are not the proper 'market values,' the 'true cash values' and 'assessed values.'\\n\\\"As to Petitioner's first jurisdictional claim that the Tax Commission could not raise any part of the assessment, I am of the opinion that they do have that power and that it was their duty to do so. Both parties claim and offered proof that the valuation of the Assessor for 1957 did not show 'true cash value' and did not show proper 'assessed values.' They were set aside on Petitioner's own request. It then certainly becomes necessary for the Tax Commission to determine the 'true cash values' and the proper 'assessed values' for that year. This they did from the evidence before them, which was practically all put in by the Petitioners. They would not be bound to pass on merely evidence that showed less values than the Assessor had used.\\n\\\"The State Tax Commission could not change assessments on any of Petitioner's property not covered by this appeal. Such is the holding in the cases cited by the Petitioners, to-wit: State v. Jemez Land Co., (N.M.) 226 P 890; City of Newark v. Timer, (N.J.) 170 A 37; Robinson v. State Tax Commission, 216 Or 532, 339 P2d 432.\\n. \\\"Na cases have been cited that hold that the State Tax Commission or the Court cannot determine from the evidence 'true cash value' of the particular property, or part thereof covered by the appeal, after the Assessor's 'true cash value' is determined to be wrong, even though the determined 'true cash value' exceeds the value appealed from as to one or more particular items. The Commission's duty is to find 'true cash value' as well as uniformity and equality in taxation.\\n\\\"In any event, attorneys for both sides seem to agree and the law provides that the Court shall determine the 'true cash value' and 'assessed value,' and I so find and determine that the values arrived at and set by the Commission in Order No. VL 59-594 are the proper values, and are adopted as the court's values herein. Case v. Chambers et al., 210 Or 680, 696, 314 P2d 256.\\\"\\nThe decree of the trial court is affirmed.\\nNeither party shall recover costs in this court.\"}"
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+"{\"id\": \"5012895\", \"name\": \"DRUCK v. PLASTIC SHEETING COMPANY et al\", \"name_abbreviation\": \"Druck v. Plastic Sheeting Co.\", \"decision_date\": \"1958-07-30\", \"docket_number\": \"\", \"first_page\": \"186\", \"last_page\": \"198\", \"citations\": \"214 Or. 186\", \"volume\": \"214\", \"reporter\": \"Oregon Reports\", \"court\": \"Oregon Supreme Court\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T20:03:54.585047+00:00\", \"provenance\": \"CAP\", \"judges\": \"Mr. Chief Justice Perry did not participate in the decision of this ease.\", \"parties\": \"DRUCK v. PLASTIC SHEETING COMPANY et al\", \"head_matter\": \"Submitted on briefs July 2,\\nreversed and remanded July 30, 1958\\nDRUCK v. PLASTIC SHEETING COMPANY et al\\n328 P. 2d 339\\nOn briefs.\\nReinhardt & Coblens, Portland, for appellant.\\nWilliam M. Langley, and Willis A. West, Portland, for respondent County of Multnomah.\", \"word_count\": \"3431\", \"char_count\": \"20350\", \"text\": \"O'CONNELL, J.\\nThis is a suit to foreclose a chattel mortgage executed by the defendant Plastic Sheeting Company. The United States of America and the County of Multnomah were joined as defendants for the purpose of adjudicating their respective lien claims for taxes. The interest of the United States is not involved in this appeal.\\nThe mortgage in question was executed on Oc tober 29, 1951 by tbe defendant Plastic Sheeting Company to C. H. and Matilda S. Farrington to secure a promissory note in the amount of $76,000. On February 17, 1953 the note was renewed and incorporated into a note for a larger amount. The mortgage, which was recorded on December 27, 1951, covered certain fixtures and equipment owned by the mortgagor on the date of the execution of the mortgage. No part of the merchandise inventory of the mortgagor was covered by the mortgage. On January 18, 1952 the note and mortgage were assigned to the United State National Bank of Portland, which in turn made an assignment to the plaintiff on April 30,1954. These assignments were for value and were duly recorded. On February 20, 1953 the sheriff of Multnomah County levied an assessment against Plastic Sheeting Company for personal property omitted from the assessment for the fiscal years 1951-1952 and 1952-1953. This assessment was made pursuant to OBS 311.210 which establishes the procedure for the assessment of property which has been omitted in the assessment for any year. Taxes which had been regularly assessed in the years 1951-1952 and 1952-1953 had been paid. Taxes for the fiscal years 1953-1954 and 1954-1955 were also levied against Plastic Sheeting Company.\\nThe February 20, 1953 assessment of the omitted property was based upon the mortgagor's merchandise inventory only. The possession of the property covered by the mortgage was transferred from the mortgagor to the plaintiff on April 26,1954. The mortgage foreclosure decree ordered the mortgaged property sold and ordered the proceeds applied to the satisfaction of the mortgage debt only after the personal property taxes assessed against the mortgagor for the years hereinbefore mentioned had been paid. At the foreclosure sale a bid in the amount of $500 was made on plaintiff's behalf. This was the only bid made. The amount bid was tendered to the sheriff of Multnomah County, who rejected the tender and refused to execute and deliver to the plaintiff a certificate of sale unless the plaintiff paid the personal property taxes levied against the mortgagor. To prevent the sheriff of Multnomah County from selling the property free of the mortgage interest, the plaintiff obtained an order enjoining the sale of the property described in the foreclosure decree until the entry of a final decree disposing of the question of priority between the asserted tax lien and the mortgage lien. By a later order the circuit court also determined that the sheriff was not obligated to execute and deliver a sheriff's certificate of sale covering the property in question. The plaintiff appealed from that determination and from the decree of foreclosure postponing plaintiff's interest in the proceeds of the sale to the defendant county's claim for taxes.\\nIt is the contention of the defendant Multnomah County that personal property taxes based upon the omitted property for the years 1951-1952 and 1952-1953, as well as the taxes assessed against the mortgagor for the years 1953-1954 and 1954-1955 were a charge upon all of the personal property owned by the mortgagor, including the fixtures and equipment which, as indicated above, came into the possession of the plaintiff on April 26, 1954. It is the plaintiff's contention that a lien for taxes assessed against specific personal property does not extend to other property of the taxpayer and that to create a lien on such other property distraint must be made by the sheriff, in which case the lien so created is subject to encumbrances then existing.\\nAs already observed, none of the property covered by the mortgage was included in the assessment of the omitted property made on February 20, 1953 for the years 1951-1952 and 1952-1953, that assessment being confined to the omitted merchandise inventory and the mortgage covering only fixtures and equipment. It is clear then that if the plaintiff's contention is valid, the lien of the defendant county would not attach to the mortgaged property until distraint was made and then only if this were done before the mortgage lien attached.\\nThe defendant county relies upon ORS 311.405, subsections (3) and (4). Subsection (3), prior to an amendment not germane to this case, provided as follows:\\n\\\"Taxes on personal property shall be a lien on all personal property of the person assessed from and including January 1 of the year of assessment until paid, except as provided in ORS 311.410.\\\"\\nThe statute is worded broadly enough to make possible the construction contended for by the defendant county. However, the statute has not received this broad construction.\\nIt was established in Owens v. Oregon Livestock Loan Co., 151 Or 63, 47 P2d 963 (1935) that a tax lien attaches only to the specific property assessed and that with respect to other property of the taxpayer a lien does not arise unless distraint is made on such other property, in which case the lien arises on the date of distraint. In that case a mortgage was executed on various items of personal property, including several thousand sheep. Soon after the execution of the mortgage the mortgaged property was delivered to the mortgagee in satisfaction of the mortgage debt. About three years after the transfer of the property from the taxpayer to the mortgagee the sheriff seized certain sheep then in the mortgagee's possession, contending that they were the same flock of sheep assessed to the mortgagor. The court rejected this contention, pointing out that as a result of deaths, births, sales and purchases, a very few if any of the sheep which were in existence at the date of the seizure had been in existence when the taxes in question were assessed. The court held that the county had no right to any of the proceeds of the sale of the property on foreclosure of the mortgage because the county could not establish that any of such property in the possession of the mortgagee had been assessed for the taxes which the county was then attempting to collect. The court relied principally upon a series of Washington cases construing Washington statutes similar to the Oregon statutes relating to the assessment of personal property, and particularly OES 311.405, as quoted above. The Washington cases were summarized by the court as follows:\\nas * o 0Ii2y property assessed is liable for payment of the tax unless the tax collector distrains other property. But his distraint is ineffective unless the property he seizes belongs to the tax debtor at the time of the distraint. The fact that it belonged to the tax debtor at the time the tax was levied is immaterial if it now belongs to some one else.\\\" Owens v. Oregon Livestock Loan Co., 151 Or 63 at page 74.\\nThe defendant Multnomah County argues that the Owens case is inapposite on the ground that in that case the property in question was transferred to a purchaser, whereas in the instant case the plaintiff \\\"is no more than the assignee of an encumbrancer\\\", and that the property so encumbered was still in possession of the mortgagor at the time of the assessment. We do not regard the distinction as significant in this case. The mortgagee or his transferee acquired an interest in the property secured. The fact that his property interest is a lien only and therefore less than the full title to the property should not deprive him of protection against the interest of the county which arises after his lien has attached. In the Owens case it was said:\\n\\\" To hold that a tax assessed against specific personal property is a lien not only upon that property but also upon all of the rest of the tax debtor's property and that a distraint may be enforced long after the property has passed, through successive sales, into new ownerships could certainly occasionally result in injustice. \\\" 151 Or 63 at 76.\\nInjustice could result as well where the \\\"new ownership\\\" is the limited ownership of a security interest. The plaintiff as assignee of the mortgage acquires this security interest. It is our conclusion that with respect to the assessment of February 20, 1953 for personal property omitted from the earlier assessments the plaintiff is entitled to priority as against the defendant county.\\nA different problem is presented with respect to the taxes assessed against Plastic Sheeting Company's personal property for the years 1953-1954 and 1954-1955. As stated above, the assessment of February 20, 1953 was made on the basis that the omitted property of the taxpayer consisted of merchandise inventory only. It follows that the fixtures and equipment in the mortgagee's possession could not have been identified as the property assessed upon which a tax lien would arise through the assessment. However, with respect to the 1953-1954 and 1954-1955 taxes it is possible that the fixtures and equipment now in the plaintiff's pos session was the property specifically assessed in those years as the property of the mortgagor, in which ease the lien arising through such an assessment would be superior to that of the lien of the mortgage. On the other hand, it is possible that the property in the plaintiff's possession does not constitute any of the property upon which the taxes for those years were levied. If the latter were true, the defendant county would not have a lien until distraint was made on the property in the plaintiff's possession. The principle applicable here is recognized in the Owens ease. In that case the court approved and applied the rule stated in Wilberg v. Yakima County, 132 Wash 219, 231 P 931, 41 ALR 184, as follows:\\n\\\" 'If the tax is not collected from the person against whom it is assessed and who owned the personal property at that time, it may be collected from a subsequent owner in whose hands the property may be at the time of the attempted collection ; but in order to collect the tax from such person it must originally have been so specifically assessed that it can be traced into the hands of persons against whom the tax is sought to be enforced and there identified as being the same specific property described in the original assessment.' \\\"\\nThe question is then, were the fixtures and equipment in the possession of the plaintiff property specifically assessed in 1953-1954 and 1954-1955 as the property of the mortgagor? Upon cross-examination both the personal property tax collector and the personal property appraiser of the defendant county testified that they were not able to determine whether any of the property covered by the mortgage had been included in the assessments for the years in question. And the lower court found that none of the property in the plaintiff's possession covered by the mortgage had been identified as the property assessed to the mortgagor.\\nIll spite of this failure of proof by the defendant county, we might indulge in the assumption that since the property in question was in the mortgagor's possession until April 26,1954, it must have been assessed along with other personal property of the defendant Plastic Sheeting Company and that the taxes attributable to this assessment are those which are now being claimed. Were we to make this assumption the plaintiff would not be liable for more than that proportion of the tax which was attributable to the property in his possession. The findings of fact reveal that of the merchandise, fixtures and equipment assessed to the Plastic Sheeting Company for the two tax years in question, approximately 15 per cent constituted fixtures and equipment. Consequently, even if we should identify the property in the plaintiff's hands as the property assessed, and if we should assume further that the merchandise, fixtures and equipment referred to in the findings constituted all of the Plastic Sheeting Company's personal property in Multnomah County in the tax years 1953-1954 and 1954-1955, the plaintiff would be liable only for this relatively small proportion of the tax claimed. But even in such case we are without any direct evidence offered by the defendant county to establish the proper proportion of the tax for which the plaintiff would be responsible. It is quite apparent that the defendant county drew its pleadings and rested its argument upon the assumption that its lien for taxes spread over all of the taxpayer's property and not simply that which was specifically assessed. As a consequence its pleading and proof are in very general terms. If we were to give the defendant county the benefit of the assumption referred to above, it would be necessary to establish that all of the personal property of Plastic Sheeting Company in Multnomah County had been assessed, that the merchandise, fix tures and equipment constituted all of such property assessed, and that no taxes on any of the personal property in the county had been paid. The pleadings, proof and findings do not establish this. It is possible therefore that the tax for which a county asserts its lien is not the tax arising out of the assessment of the property now in the plaintiff's possession.\\nWe are aware of the frequently stated policy in favor of simple, unimpeded, and sometimes even summary methods of collecting taxes. But there is a limit to which this court can go in excusing a tax collecting unit from following the rules of pleading and proof in establishing its case. We are of the opinion that these rules should not be required to bear the strain upon them which the defendant county has asked us to do in this case. In short, it has not carried the burden of proof in establishing its lien on the property in the plaintiff's possession.\\nIn the foregoing discussion we have assumed that the defendant county has the burden of proving that the property upon which the tax lien is asserted was the property assessed. The reasoning in the Owens ease, supra, supports this assumption. In that case the plaintiff argued that the burden of proof rested upon the county to establish that the property sold for taxes by the sheriff was the property assessed. As in the case at bar, it was possible that some of the property upon which the tax lien was asserted had been assessed by the county. But the county did not show this connection. The court said:\\n\\\" The sheriff did not make the seizure upon which he is now relying until about three years after that transaction. Hence, he can hold none of the sheep transferred by the Farghers to the loan company liable for the Farghers' unpaid taxes except those, if any, assessed for the taxes which he is now endeavoring to collect. So far as we can learn from the record, the sheriff made no direct effort to prove that any of the property transferred had been assessed for 1927, 1928, 1929 and 1930 taxes, bnt sought to support his claim with a contention that all of the Farghers' property was subject to a lien for their unpaid taxes, and that when the loan company acquired the sheep its title was subject to a lien for all unpaid personal property taxes. The statute does not support his claim.\\\" Owens v. Oregon Livestock Loan Co., et al., 151 Or 63 at 77.\\nThe same principle is announced in Farm & Cattle Loan Co. v. Faulkner, 34 Wyo 199, 242 P 415 (1926). There the taxpayer mortgaged a herd of cattle to the plaintiff in 1922. The county seized the cattle under a distraint warrant to satisfy taxes levied upon the property of the mortgagor in 1921. In holding that the seizure was invalid, the court said:\\n\\\"The principle deducible from these authorities is, we think, that, when appellant showed its mortgage, it made a prima facie case, and the burden to overcome it devolved upon the respondents. We think it clear upon the record before us that this prima facie case of appellant has not been met. The assessment schedule was not shown. It does not appear whether the tax was levied on real or personal property. There is no evidence in the record that cattle \\u2014 let alone calves which would have been yearlings in 1922 \\u2014 were assessed for taxation. We cannot presume that, simply because the 'property' of Townsend in Weston county was assessed, that the assessment included personal property, or property of the same class as that seized by the county treasurer under the distraint warrant. Bespondents have accordingly shown no right whatever to the cattle seized as against the mortgagee, have not met the prima facie case made by appellant, and the case must accordingly be reversed. \\\"\\nSee also O'Sullivan v. Blakely, 54 Or 551, 104 P 297 (1909).\\nThe defendant relies upon Wyman v. Noonday Mining Co., 100 Or 211, 197 P 289 (1921) and Getchell v. Walker el al., 129 Or 602, 278 P 93 (1929). These cases, interpreting what is now ORS 311.405, hold that a tax lien is superior to a mortgage lien whether the taxes are levied prior to or subsequent to the creation of the mortgage lien. This result was reached on the basis of the language in what is now ORS 311.405 (6) which provides, in part, as follows:\\n\\\"* \\u00b0 * Such [tax] liens shall have priority to and be fully satisfied before any judgment, mortgage or other lien or claim, except the lien for taxes for a subsequent year; ORS 311.405 (6).\\nThese cases and the statute are not applicable to the case at bar. If it had been established in the instant case that the mortgaged property had been assessed and that the tax lien was being asserted on the basis of that assessment, the mortgage interest would be subordinated to the county's lien. But, as pointed out earlier, this was not the case. Unless the defendant county can trace its lien arising out of the assessment to the property held by the plaintiff, it has no lien until and unless distraint is made, and in such case the lien so acquired is subject to existing liens on the property distrained.\\nThe possession of the property covered by the mortgage was retained by the Plastic Sheeting Company until April 26,1954, at which time it was delivered to the plaintiff. The defendant attaches significance to the mortgagor's retention of possession, relying upon ORS 308.105, which reads in part as follows:\\n\\\" Personal property which is mortgaged or pledged is, for purposes of assessment and taxa tion, the property of the person who has the possession thereof.\\\" OES 308.105 (2).\\nThe statute simply designates the taxpayer who is to be responsible for paying the tax with respect to certain property assessed, and this responsibility is based upon the possession of the assessed property. The statute does not entitle the county to a lien on the property possessed but not owned by the taxpayer to satisfy a claim for taxes assessed against other property of the taxpayer. And if the property in the possession of the taxpayer is owned by him subject to an encumbrance, the encumbrance has priority over the county's claim for taxes assessed against other property of the taxpayer unless the county creates a lien by distraint on the possessed property before the third party's encumbrance is created. We conclude therefore, that because the defendant county did not establish that any part of the property in the possession of the plaintiff could be identified as property assessed to the Plastic Sheeting Company, for which the defendant county is now asserting its lien, the plaintiff's mortgage lien has priority.\\nThe decree is reversed and the cause remanded with instructions to the lower court to enter a decree in accordance with the views expressed herein. The lower court shall also direct the sheriff of Multnomah County to complete the foreclosure sale by executing and delivering to the plaintiff a certificate of sale of the property described in the foreclosure decree.\\nMr. Chief Justice Perry did not participate in the decision of this ease.\"}"
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+"{\"id\": \"5036490\", \"name\": \"ELEY v. MILLER\", \"name_abbreviation\": \"Eley v. Miller\", \"decision_date\": \"1941-02-18\", \"docket_number\": \"\", \"first_page\": \"80\", \"last_page\": \"92\", \"citations\": \"166 Or. 80\", \"volume\": \"166\", \"reporter\": \"Oregon Reports\", \"court\": \"Oregon Supreme Court\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-11T01:08:36.034864+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Kelly, Chief Justice, and Belt, Bailey and Lusk, Associate Justices.\", \"parties\": \"ELEY v. MILLER\", \"head_matter\": \"Argued January 23;\\nreversed February 18, 1941\\nELEY v. MILLER\\n(110 P. (2d) 587)\\nBefore Kelly, Chief Justice, and Belt, Bailey and Lusk, Associate Justices.\\nGeorge H. Layman, of Newberg, and Carl H. Francis, of Dayton, for appellant.\\nElliott B. Cummins, of McMinnville (Vinton, Marsh & Marsh, of McMinnville, on the brief), for respondent.\", \"word_count\": \"3086\", \"char_count\": \"17807\", \"text\": \"BELT, J.\\nPlaintiff commenced an action to recover damages on account of the alleged failure of the defendant to convey 1.91 acres of land. The contract of sale and the deed executed by the defendant vendor includes the above tract together with other land owned by defendant, but it is conceded that title to the 1.91 acres is vested in third parties. Plaintiff asserts that, by reason of this alleged breach of warranty, he has been damaged in the sum of $1,750.\\nDefendant, by answer in the nature of a cross-bill in equity, seeks reformation of the contract and deed on the ground of mutual mistake, alleging in substance that it was never the intention of the plaintiff to purchase nor the defendant to sell the land in controversy.\\nThe cause, under stipulation of the parties, was submitted to the court for decision without the intervention of a jury. From a decree reforming the deed so as to exclude the land in question, the plaintiff appeals.\\nIn June, 1937, plaintiff, then a resident of California, came to Oregon with the intention of acquiring river front property suitable for development. At that time he met Cecil W. Stuller, realtor at Lafayette, Oregon, who showed him defendant's farm in Yamhill county, consisting of 173 acres, more or less, which had been listed for sale.\\nReference to the following plat of the southern part of the farm will aid in understanding the issues of the case:\\nIt is observed from the above plat that the 1.91 acres in controversy lie between the old abandoned county road and the re-located highway. This land is owned by a Mr. Wilson and his sister, Mrs. Ramsden, who have homes just across the re-located highway. The true western boundary of defendant Miller's land opposite the tract in question is the old abandoned road, but north of such tract the re-located highway marks the western boundary of the Miller farm. However, in the contract of sale and deed, the western boundary of the land in controversy was described as following the line of the re-located highway.\\nStuller was very familiar with the Miller property and the boundaries thereof as he had previously shown it to various prospective purchasers. Stuller said that when the property was shown to the plaintiff they stood at the northern tip of the triangular tract in question \\u2014 where the old road converges with the relocated highway \\u2014 and he \\\"explained to plaintiff that the line went to the old road and didn't run out on new highway\\\" and that the land \\\"belonged to some people by name of Wilson\\\".\\nEley testified that they followed the highway south from the northwest corner of the Miller land until they reached the northern point of the triangular tract and then Stuller thus pointed out the western boundary: \\\"You look right down this road (referring to highway) and you see some kind of wooden fence, or some mark where it showed would be a draw. This property goes down the middle of the road to that draw.\\\"\\nStuller and plaintiff went to Miller's home on the farm for noonday dinner. After dinner, Stuller and plaintiff went back to look at the property again, ac companied by Miller, the seller. According to Stuller, discussion arose at that time about the strip between the two roads and plaintiff asked Miller to contact the Wilsons and \\\"see if I can't buy that.\\\" Stuller also testified that plaintiff said he was willing to pay a nominal sum as it was of no particular value, but that Miller said he could not do much with the Wilsons \\u2014 although friendly to them \\u2014 as he had had some \\\"little difficulty with them on account of a dog.\\\" Stuller stated that Miller told plaintiff then and there that \\\"My line doesn't follow that fence, but it follows, as Stuller told you, along the old road.\\\"\\nThe defendant Miller testified about discussing the western boundary of the land with plaintiff and stated that he told Eley \\\"It goes on to the old road\\\" and that the triangular strip belonged to Wilson. Miller also testified that plaintiff inquired of him if he could buy such strip.\\nLater, in the early part of August, another inspection of the premises was made and, according to Stuller, \\\"Eley said he still wanted to get that piece if he could.\\\"\\nMrs. Minnie Long \\u2014 housekeeper for defendant, who prepared dinner when first inspection of property was made \\u2014 testified, to having heard a conversation between plaintiff and defendant wherein the former inquired if he could not buy the \\\"three cornered tract belonging to Wilsons.\\\" Mrs. Long was very positive that this conversation, occurred when she witnessed the contract dated August 14. Eley was admittedly in California at such time. Such palpable error on the part of the witness greatly weakens her testimony that the conversation ever occurred.\\nPlaintiff positively denies that the old road was pointed out to him as the western boundary or that Wilson was designated as the owner of the triangular tract in question. Indeed, plaintiff asserts that the re-located highway was specifically designated as the western boundary. Plaintiff also denies that he had such conversations concerning his desire to purchase the land at such time from Wilson.\\nAfter the second inspection was made, plaintiff returned to California. A contract and an escrow agreement were forwarded to him for execution. In each of these instruments, the western boundary was thus described: \\\"Beginning on the easterly margin of the relocated state secondary highway from Salem to Dayton number thence in a southerly direction on the easterly margin of said relocated highway to the south line of the William Miller Donation Land Claim.\\\" (Italics ours.) Plaintiff re-drafted the contract and thus described the land: \\\"All that property laying between the relocated State Secondary Highway No. 15 and the Willamette River, bounded on the north by the South line of the Daniel Matheny Donation Land Claim and on the south by the South line of the William Miller Donation Land Claim; the property containing 173 acres, more or less. This property to be more properly and fully described in the Deed to be given to the buyer.\\\" (Italics ours.) Plaintiff said he thought the description in the contract sent to him covered the land he intended to buy, but that he wanted to so describe it as to avoid any chance of misunderstanding. Plaintiff returned to Stuller the re-drafted contract and escrow agreement executed on his part, and the agent secured the signature of the seller, the defendant herein.\\nSubsequently, in September, 1937, plaintiff returned to Oregon, had the abstract of title examined by Mr. Vinton of the law firm of Vinton, Marsh and Marsh, at McMinnville, Oregon, and, upon receiving written opinion approving title, accepted from defendant a warranty deed dated September 15, 1937, in which the land, so far as concerns this appeal, was described as follows:\\n\\\"Beginning in the center of the county road now there known as and being Market road \\u00d1o. 16, said beginning point being the southwest corner of the Daniel Matheny D. L. C. in said county and state; thence running in a southerly direction in the center of said Market road to the south line of the said William Miller D. L. C. (Italics ours.)\\nNo blame is attached to Mr. Vinton by reason of his having approved the title to the land in question, as the abstract failed to disclose when the road referred to in the deed as Market road No. 16 was relocated, such designation having been at one time applicable to the old abandoned road. The plat in the abstract showed only one road.\\nPlaintiff testified that he first learned on the day after the execution of the deed that his grantor did not own the triangular tract in question. He was looking over the property accompanied by a Mr. McKinley whom he had employed to assist him in its development.. McKinley had previously worked for the defendant and was thoroughly familiar with the property. It was on this occasion that McKinley told plaintiff that Miller did not own the land between the two roads and that it belonged to Wilson and his sister.\\nOn the same day, after obtaining such information, plaintiff went across the road to see Mr. Wilson about the matter arid undertook to buy the land for a nominal sum rather than, as he says, \\\"have any trouble about it.\\\" Mr. Wilson says that plaintiff con- suited him on two different occasions about buying the land but never made any definite offer. Mr. Wilson testified positively, however, that plaintiff did say to him \\\"that if I wouldn't sell to him, he would put a line across there and make Miller take his end back.\\\"\\nMr. Eley left for California on September 18th. Asked why he did not protest to Stuller or Miller about the deficiency of 1.91 acres, plaintiff answered that Miller was away and that he had no transportation to go to Lafayette to see Stuller. After returning to California, plaintiff, on September 23, 1937, wrote a letter to Stuller containing the following paragraph:\\n\\\"On that same evening, I also received a call from a Mrs. Craig, who apparently is one of the sisters of the Wilson estate, which is located across the road from my property, she seemed particularly anxious to see me; so I called on her on Saturday morning before the train left. She is not the sister whose portion runs across the road and adjoins my south end.\\\" (Italics ours.)\\nMr. Eley says that he again consulted Wilson in December concerning the purchase of this strip and then went to see Mr. Vinton who told him, \\\"I will arrange with Mrs. Ramsden to give you a quit claim deed.\\\" Later, according to the plaintiff, Mr. Vinton wrote to him saying that Mrs. Ramsden did not want to dispose of it. .\\nMr. Vinton testified that he wrote a letter to Mrs. Ramsden about the plaintiff's desire to buy this tract but that he never, at any time after the discovery of the mistake in the description, told Mr. Eley he was entitled to the tract \\\"unless he could buy it from the Wilsons and Ramsdens.\\\" There is no real dispute between Mr. Vinton and Mr. Eley. When Mr. Eley saw Mr. Vinton in December it was known that a mis take had been made by Miller in contracting to sell something he did not own. It is entirely reasonable to believe that Mr. Vinton was willing to co-operate with Mr. Eley in undertaking to get a deed from the Wilsons and Eamsdens if the same could be had for a nominal sum. Mr. Eley did not testify that Mr. Vinton told him he was entitled to have the tract in question without paying anything therefor.\\nMrs. Eamsden testified that, in the latter part of January or the first part of February, 1938, Mr. Eley consulted her about buying the land in question. Eley said that he saw Mrs. Eamsden in December about buying her interest in the land and we think this is probably the correct time.\\nNo charge of fraud or bad faith is made against any party in this proceeding. It is fair, therefore, to assume a mistake on the part of the defendant vendor. Certainly Miller, if he was acting in good faith, did not undertake to sell land which he did not own. He knew the boundaries of his land and it is highly improbable that he would orally designate the re-located highway as the western boundary of the strip in question. Since no charge of fraud is made against Stuller, we may also assume that he acted in good faith and would not intentionally misrepresent the true boundary of the land.\\nMistake by the vendor alone would not justify reformation. .The mistake must be mutual. There is a strong presumption that the contract and deed express what the parties had in mind, and the burden of overcoming such presumption rests upon the party seeking reformation. It is incumbent upon him to establish by clear,, satisfactory, and convincing proof that- the deed purporting to convey the tract in ques tion is the result of mutual mistake: Brown v. Briggs, 134 Or. 184, 292 P. 1034, and numerous authorities from this court cited therein. If the rule were otherwise, there would be slight certainty and stability in written contracts. -\\nThe vital question is whether the plaintiff buyer knew that the triangular tract was not to be included in his purchase of the Miller farm. The old county road had not been used for ten years or more and was at such time overgrown with brush. It is quite reasonable to suppose that plaintiff would not know of its existence unless his attention had been specifically directed thereto. It is also reasonable to assume that the plaintiff would conclude in the absence of knowledge to the contrary, that the present highway marked the boundary of defendant's land to the south line. Of course, if plaintiff was specifically told that defendant did not own such tract, there would be no occasion to indulge in such assumptions.\\nWe confess that we are not entirely able to reconcile the claims of plaintiff with his conduct after learning that defendant did not own the small tract between the two roads. Ordinarily, the buyer would immediately protest to the seller or his agent. It is apparent, however, that Eley still hoped to acquire the interests of Wilson and his sister for a nominal sum and thereby avoid trouble. When he did learn that title to the tract could not thus be acquired, protest was made to Mr. Vinton and to Mr. Stuller.\\nIt is urged that the letter written by plaintiff to Stuller on September 23d wherein it is stated, \\\"She (Mrs. Craig) is not the sister whose portion runs across the road and adjoins my south end\\\" is inconsistent with the contention of plaintiff that he intended to buy the tract in question. At the time this letter was written, plaintiff knew that defendant did not own such tract. We'see no inconsistency in such statement of fact. Plaintiff, at such time, was waiting for a reply from the Wilsons and probably thought there was no need of then making any protest. The statement which plaintiff made to Wilson about making Miller \\\"take his end back\\\" if Wilson would not sell is highly significant.\\nWe have said it is difficult to fully reconcile the conduct of the plaintiff subsequent to learning that defendant did not own the tract between the two roads with his present contention. It is also difficult to understand why defendant executed the contract of \\u2022sale wherein the land was described as \\\"All that property laying between the relocated State Secondary Highway No. 15 and the Willamette river\\\", if there was .so much talle prior thereto about the triangular tract in question. The language'is plain and unambiguous. We can- attribute such mistake only to carelessness and negligence.\\nMr. Miller, the seller, testified on cross examination .as follows, in reference to execution of the contract of sale:\\n\\\" Q. Did you read that agreement before signing it ? A. Yes.\\n\\n\\\"Q. Now, I'would like to ask, Mr. Miller, that you explain how it was that when you were so particular, as you testified that you were, to tell the agent that .you didn't own this strip of land, and when you were so particular to point it. out to Mr. \\u00c9ley, that you didn't own that piece of land, then how is it that you were willing to sign a document specifically contracting to sell all the property between the re-located highway and the river? A: It said all-1 owned, don't it?\\n\\\"Q. No, it said all the property lying between the re-located secondary highway and the river. A. Well, I figured what land I never owned, I couldn't sell it, and when I showed bim where the line was, I thought that was all right.\\n\\\"Q. You weren't so particular about what you were signing on paper. When you made a written contract to sell land, you weren't so particular about what you said in that contract? A. Oh, yes. I have always been particular not to sell anything that didn't belong to me.\\n\\\"Q. Then why were you willing to sign a contract covering all the land between the re-located highway and the river? A. Well, it's just like this. I probably didn't notice that little particular quick concerned in there. As a matter of fact, I probably was a little ignorant and didn't understand the legal phraseology.\\n\\\"Q. Well, this is simple language, 'all the land between the re-located state highway and the river.' A. Yes.\\n\\\"Q. You were very particular in your oral conversation? A. Yes.\\n\\\"Q. But you weren't so particular in your written contract. A. Well, I suppose you could take me on that. I always supposed in our language when you only had so much to sell, you couldn't sell any more, and when you told a man orally that was the way it would be.\\\"\\nAfter careful study of this record, we conclude it has not been established by clear, satisfactory, and convincing evidence that the plaintiff knew the 1.91 acre tract was not to be included in the purchase of the Miller farm. In other words, we think it has not been established with sufficient certainty that a mutual mistake occurred in the execution of the contract of sale. Mere preponderance of the evidence will not suffice. As stated in Pomeroy's Equity Jurisprudence (4 ed.), \\u00a7859, and quoted with approval in Miller v. Miller, 120 Or. 484, 252 P. 705:\\n\\\"Courts of equity do not grant the high remedy of reformation upon a probability, nor even upon a mere preponderance of evidence, but only upon a certainty of the error.\\\"\\nThe decree granting reformation is reversed and the cause remanded with directions to determine the amount of damages sustained by plaintiff by reason of the failure of the defendant to convey the tract in question.\\nPlaintiff is entitled to costs and disbursements.\"}"
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+"{\"id\": \"5045410\", \"name\": \"SIMONTON v. DWYER et al.; PRICHARD v. DWYER et al.\", \"name_abbreviation\": \"Simonton v. Dwyer\", \"decision_date\": \"1941-07-15\", \"docket_number\": \"\", \"first_page\": \"50\", \"last_page\": \"57\", \"citations\": \"167 Or. 50\", \"volume\": \"167\", \"reporter\": \"Oregon Reports\", \"court\": \"Oregon Supreme Court\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-11T01:08:33.002314+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Kelly, CMef Justice, and Bailey, Rand, Rossman and Brand, Associate Justices.\", \"parties\": \"SIMONTON v. DWYER et al. PRICHARD v. DWYER et al.\", \"head_matter\": \"Argued June 25;\\naffirmed July 15, 1941\\nSIMONTON v. DWYER et al. PRICHARD v. DWYER et al.\\n(115 P. (2d) 316)\\nBefore Kelly, CMef Justice, and Bailey, Rand, Rossman and Brand, Associate Justices.\\nA. E. Clark, of Portland (Clark & Clark, both of Portland, on the brief), for appellants.\\nBorden Wood, of Portland (McCamant, Thompson, Bang & Wood, of Portland, on the brief), for respondents.\", \"word_count\": \"2244\", \"char_count\": \"12656\", \"text\": \"RAND, J.\\nThese suits were instituted separately by two of the daughters of Anthony J. Dwyer, who died on June 23,1939. In her complaint, each plaintiff prays that she be adjudged to be the owner of 50 shares of stock in the Southeast Portland Lumber Company, a corporation which was organized by the father of the plaintiffs in 1925. The issues being identical, the eases were consolidated and tried together in the circuit court under a stipulation that the evidence offered should be considered in both cases. Upon the hearing here, they were argued and submitted together and, hence, this decision will apply to both.\\nAnthony J. Dwyer had been twice married. By his first wife, who died in 1899, he had four daughters, one of whom predeceased her father. By his second wife, who is still living, he had three sons and two daughters. The plaintiffs are daughters of the first marriage.\\nThe Southeast Lumber Company has an authorized capital stock of $300,000, divided into 3,000 shares of the par value of $100 each. Until 1929, when decedent gave to each of his two oldest sons 250 shares of the capital stock of said corporation, he was the sole owner of all said stock and, until Ms death, he was president of the corporation and actively controlled its affairs. On June 5, 1933, the decedent was the owner of 2500 shares of the capital stock of said corporation. On that day he surrendered to the corporation certificates for 2000 shares of stock and had the same cancelled and, in lieu thereof, the corporation, under his direction, issued new stock certificates in the name of his wife and of his children by both marriages in the following amounts: to his wife, 300 shares; to four of the five children of Ms second marriage, 250 shares each; to his youngest son, 500 shares; and to each of the four children of his first marriage, 50 shares. These new stock certificates were all signed by him as president of the corporation and by E. C. Dwyer, one of Ms sons, as secretary thereof. With the exception of the four certificates issued to the four daughters of the first marriage, each of the new certificates was delivered to each of the parties to whom they had thus been transferred. None of the four certificates so issued to his four daughters by his first marriage were delivered to them and, with one exception, he kept them in his possession until the time of his death and they are now in the possession of the administrator of the father's estate.\\nNellie D. Doering, who was living at the time these certificates were issued, predeceased her father and, upon her death, her father caused her certificate to be cancelled and a new certificate in lieu thereof to be issued in his own name.\\nUntil shortly prior to their father's death, none of the children of the first marriage were notified that any certificates had been issued to them. About one year prior to his death, the decedent said to his daughter, Mrs. Prichard, one of the plaintiffs herein: \\\"May, I want yon to know that I have given $5,000 in stock in the company to each of yon girls. See that you get it when the time comes\\\", to which his daughter replied: \\\"Thank you, dad. That is nice of you\\\". He then cautioned her to say nothing of it to the others until \\\"the time comes\\\". About two years prior to decedent's death, as appears from the deposition of Margaret E. Halloran, a relative of decedent's first wife, Mr. Dwyer told her that he had organized a company to operate his business and said further: \\\"I have given each of my children shares in the company and there will be no trouble after my death in settling my estate.\\\" Except as above, none of the children, until after their father's death, had any knowledge that any of these certificates had been issued to them.\\nThe evidence shows that after 1929 and up to and including 1933 the corporation was operating at a loss and during the year 1934 its.net gain was only $587.85. After that it operated at a profit but what that profit was is not disclosed. However, no dividends were declared during the father's lifetime.\\nThe evidence further shows that the corporation was operated as a family concern and, as one of the sons testified, his father would brook no interference in business matters from any'one. If any notice of a stockholders' meeting was ever given, it was not given to any of the four daughters of the first marriage and, hence, their failure to participate as stockholders of the corporation during their father's lifetime is wholly irrelevant and immaterial upon any issue in the case.\\nIt is contended that the father's failure to deliver these certificates to his four daughters and his custody of them during his lifetime rendered ineffectual his attempt to make a gift of these certificates to his daughters and prevented the transaction from becoming a valid and completed gift.\\nIt is also contended that, since there was no acceptance by the four daughters of these certificates, the gift was also invalid.\\nWith these contentions we are unable to agree. It seems obvious that, when Mr. Dwyer surrendered to the corporation his stock certificates, aggregating 2000 shares, and had the same cancelled and, in lieu thereof, new certificates issued to his wife and to all his children in various amounts, he intended to make a gift of these shares of stock to each relative named in the certificates. The fact that he gave a greater number of shares to the children of the second marriage than to those of the first marriage raises no doubt as to his intention to make a gift to each. On the contrary, it is proof of such an intent because the evidence shows that his second wife and the children of his second marriage, and not the children of the first marriage, had been largely instrumental in helping him acquire his property, and, hence, we hold that, when causing these certificates of stock to be issued to the various members of his family, he intended to make a gift of them to those named therein.\\nThe contention that the manual delivery of these stock certificates by the donor to the donee was necessary to constitute a valid gift is not well taken.\\nIt must be remembered that the usual and ordinary way of making a gift of corporate stock is for the holder of a certificate to indorse the same and to deliver it to the donee. In that case, the delivery of the indorsed certificate is essential to the validity of the gift. Here, the transfer was made by delivering up his own certificates and having new certificates issued to the donees in lieu thereof. Therefore, the transfer of the stock was rightfully made and completed, and vested in the transferees the legal title to the stock. For that reason, a manual delivery of the newly issued stock was not necessary to complete the gift. As said by Shaw, C. J., in Fisher v. Essex Bank, 5 Gray (Mass.) 373, 378:\\n\\\"When a transfer is rightfully made and completed, it vests a right in the transferee, not merely to act in the place of the vendor and in his name, but substitutes him, in all respects, as the legal and only holder of the shares transferred, to the same extent to which they were before held by the vendor. The title, therefore, by which such interest is held, is strictly a legal title. ' '\\nSee also 1 Machen on Modern Law of Corporations, 1908 ed., section 833 and footnote. There the author says:\\n\\\"A completed transfer of a share invests the transferee with all the rights and obligations incident to ownership previously enjoyed and borne by the transferor. The transfer is complete when, and not before, the transferee attains the status of shareholder not merely with respect to the transferor but also with respect to the corporation. The legal title to the shares may then be said to pass.\\\"\\nSee also note, 99 A. L. R., p. 1080, and authorities there cited, where it is said:\\n\\\"There is a complete gift of corporate stock where, by the direction of its owner, it has been transferred to the donee on the books of the corporation, and a new certificate issued in the name of the donee, or a certificate is issued in the first instance in the name of the donee, although the certificate so issued is retained by the donor or the corporation, and not delivered to the donee.\\\"\\nIn Reed v. Roberts, 85 Pa. 84, 86, the court said:\\n\\\"* \\u00ab * But here the gift is complete by the delivery of the thing itself, for transferring the shares to her upon the books of the company is putting her in complete possession of the thing assigned, and clothing her with the complete legal title. It stands in the place of a delivery. Such an act performs precisely the office which an actual delivery would perform if it were a chattel. It is as complete a delivery as the nature of the thing will admit of. There can be no clearer evidence of a design to part with the right of property in favor of another than an absolute transfer of the legal title to her for her own use. The certificates were but secondary evidence of her ownership, and only useful for purposes of transfer. They were nothing more than the official declaration by the company of what already appeared on their books. There was here no locus poenitentiae. He (the donor) could not have used the certificates, nor could any one have used them except Miss Foster (the donee).\\\"\\nThe above was quoted with approval in Phillips v. Plastridge, 107 Vt. 267, 179 A. 157, 99 A. L. R. 1074. Continuing in that case, the court said:\\n\\\" And in Chicago Title & Trust Co. v. Ward, 332 111. 126, 163 N. E. 319, 322, a transfer of shares on the books of the corporation passes the legal title to the person named in the stock certificate. The certificate being only secondary evidence of title and not necessary, the transfer on the books at the instance of the donor being the best evidence of delivery of which the gift is susceptible, no other rule is compatible with the principle of protection of the donee against retraction of a completed gift.' To the same effect are Thomas v. Thomas, 70 Colo. 29, 197 P. 243, 245; Deming v. Williams, 26 Conn. 226, 68 Am. Dec. 386, 387; Barnhouse v. Dewey, 83 Kan. 12, 109 P. 1081, 1083, 29 L. R. A. (N. S.) 166; and see Fletcher v. Fletcher, 55 Vt. 325, 327; Ross v. Draper, 55 Vt. 404, 407, 45 Am. Rep. 624. In Re Estate of Heller, 210 Wis. 474, 480-482, 246 N. W. 683, cited by the plaintiff, seems to be contrary, although there were circumstances from which it might be possible to infer that the stock had not in fact passed out of the dominion and control of the alleged donor. However, we.approve and adopt the doctrine stated in the cases previously mentioned. Other decisions cited by the plaintiff deal with situations where a stock certificate having been indorsed, remained in the possession of the alleged donor, or where, in one way or another, complete control over the securities had not been relinquished by him.\\\"\\nBy causing the transfer to each of the plaintiffs of 50 shares of stock in the corporation upon its books and having new certificates issued for that number of shares in the name of the plaintiffs, the father divested himself of all right, title and interest in the stock thus transferred and vested the legal title thereto in the plaintiffs, and thereby irrevocably placed the stock beyond his dominion or control. That this transfer was made under his direction is proved by his own signature as president on the certificates issued in the name of the plaintiffs. He thus placed himself in the position that any interference by him with the stock without consent of the plaintiffs would be unauthorized and unlawful and, hence, the rights of the plaintiffs in no manner depended upon delivery of said certificates to them.\\nThe further contention that, in order to render the gift valid, it was necessary for the plaintiffs to accept the gift is equally unfounded, for, as said in Phillips v. Plastridge, supra, the law presumes an acceptance of the gift by the donee when it is unaccompanied by any condition to be performed by him, and especially is this so when the gift is from a parent to a child. Hence, no notice of the gift to the plaintiffs and no act of acceptance upon their part were necessary to complete the gift.\\nIn each of the above cases, the decree of the circuit court is affirmed.\"}"
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+"{\"id\": \"537402\", \"name\": \"In the Matter of the Marriage of Cynthia Louise BOCK, Respondent, and Edmund James BOCK, Jr., Appellant\", \"name_abbreviation\": \"In re the Marriage of Bock\", \"decision_date\": \"2000-12-13\", \"docket_number\": \"95-0571; CA A108889\", \"first_page\": \"458\", \"last_page\": \"463\", \"citations\": \"171 Or. App. 458\", \"volume\": \"171\", \"reporter\": \"Oregon Reports, Court of Appeals\", \"court\": \"Oregon Court of Appeals\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T17:47:11.255533+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Landau, Presiding Judge, and Linder and Brewer, Judges.\", \"parties\": \"In the Matter of the Marriage of Cynthia Louise BOCK, Respondent, and Edmund James BOCK, Jr., Appellant.\", \"head_matter\": \"Argued and submitted November 7,\\naffirmed December 13, 2000\\nIn the Matter of the Marriage of Cynthia Louise BOCK, Respondent, and Edmund James BOCK, Jr., Appellant.\\n(95-0571; CA A108889)\\n15 P3d 609\\nRussell Lipetzky argued the cause and filed the brief for appellant.\\nAndrew S. Noonan argued the cause for respondent. With him on the brief was Long, Delapoer, Healy, McCann & Noonan, P.C.\\nBefore Landau, Presiding Judge, and Linder and Brewer, Judges.\\nBREWER, J.\", \"word_count\": \"1441\", \"char_count\": \"8720\", \"text\": \"BREWER, J.\\nHusband moved to terminate his spousal support obligation to wife under the judgment dissolving the parties' marriage. Husband asserted that, because of wife's remarriage and her full-time employment, the spousal support award was no longer warranted. He appeals from the trial court's dismissal of his motion at the close of his evidence. ORCP 54 B(2). We affirm.\\nThe parties' 17-year marriage was dissolved by a judgment entered in August 1995. The judgment awarded indefinite spousal support to wife in the amount of $800 per month. The judgment recited the following purposes for the support award:\\n\\\"Spousal support has been awarded to [wife] in recognition of the length of the parties' marriage, the parties' respective employment and the fact that there is a great disparity between [husband's] income and [wife's] income. Further, the parties have agreed to the award of said support indefinitely in recognition of the above-facts and the fact that [wife] is being awarded the real property pursuant to the dissolution of marriage subject to indebtedness which must be serviced on a monthly basis.\\\"\\nWife remarried in August 1997. In August 1998, husband moved to modify the judgment to terminate his spousal support obligation. Husband testified at trial and also called wife and her current husband as witnesses.\\nWe summarize the relevant evidence in the record. Wife was working part-time as a teacher before the dissolution but began teaching full-time in September 1995. Her present gross employment income is about $2,500 per month. Husband currently earns $4,800 per month in gross income from employment. Wife's current husband, who owns a minority interest in a business, earns approximately $2,500 per month in gross income as an employee of the business. The evidence was in conflict with respect to how much, if any, additional income is available to wife's household by virtue of business income that is taxable to wife's husband but that may not be distributable to him. As the judgment recites, wife was awarded the parties' marital residence in the property division. The monthly payments on the residence have increased since the time of dissolution as a result of increased property taxes. Wife also took out a second encumbrance against the residence to refinance her current husband's separate debts. According to wife, because her husband makes the monthly payments on the encumbrance, he contributes only $600 per month toward family expenses.\\nAt the conclusion of husband's case, wife moved to dismiss husband's motion on the ground that he had failed to establish a substantial change in wife's economic circumstances. ORS 107.135(2)(a). The trial court granted the motion and made findings of fact in the ensuing judgment of dismissal. Among its findings, the court determined that wife's husband \\\"provides only the sum of $600 per month potential available income to the marital household. The court finds said sum as contribution to the household does not constitute a significant or substantial change of circumstance.\\\" The court also found that it \\\"was clearly foreseeable that [wife] would work full time following the divorce and that she may remarry.\\\"\\nOn appeal, husband contends that \\\"[t]he [trial] court erred procedurally in granting the motion to dismiss before hearing all of the evidence, and the court erred substantively in concluding that [bjusband did not present evidence of a change in circumstances sufficient to modify the support order.\\\"\\nIt is true that the trial court dismissed husband's claim based on findings that resolved disputed issues of fact. In other words, the court weighed the evidence after hearing only one side of the case. We agree with husband that dismissal of a domestic relations proceeding based on findings before the opposition has put on a case should be granted only in clear cases. McJunkin and McJunkin, 90 Or App 1, 3, 750 P2d 1164 (1988); Castro and Castro, 51 Or App 707, 626 P2d 950 (1981). If the matter ended there, we might share husband's view that the court dismissed the proceeding prematurely. However, we conclude that the dismissal was correct for a different reason. In her motion to dismiss, wife also asserted that \\\"[tjhere's been no testimony as to what husband's income was at the time of the [dissolution], no testimony or presentation of evidence as to what wife's income was at the time of the [dissolution], certainly nothing presented to rebut, essentially, the increase in the mortgage obligation.\\\" Wife renews that argument on appeal as an alternate basis on which to affirm the trial court's ruling.\\nIn reviewing a dismissal under ORCP 54 B(2), we consider the entire record to determine whether there was evidence to establish each of the essential elements of the plaintiffs claim. Clark and Clark, 171 Or App 205, 210, 14 P3d 667 (2000). A spousal support award may be terminated only when a change in circumstances demonstrates that the purposes of the award have been satisfied. Rubey and Rubey, 165 Or App 616, 620-21, 996 P2d 1006 (2000). The remarriage of the obligee spouse, alone, will not suffice to establish such a change in circumstances. Fouts and Fonts, 98 Or App 483, 487 n 4, 779 P2d 145, rev den 308 Or 660 (1989). Husband argues that the evidence showed that wife's and her husband's employment earnings provide sufficient income to her household so as to satisfy a principal purpose of the award. We disagree.\\nThe judgment of dissolution recites that support was awarded, in part, because \\\"there is a great disparity\\\" in the parties' respective incomes. Although wife testified that husband's income was twice her own when their marriage was dissolved, there was no evidence in the record of the amount of either party's income or the amount of the disparity between their incomes at the time of dissolution. The absence of proof on that issue is of more than academic concern. When spousal support is awarded based on a disparity in the parties' incomes, \\\"[t]he task of a court considering modification is 'to maintain the relative positions of the parties as established in the initial [judgment] in light of their changed circumstances.' \\\" Ho and Ho, 93 Or App 421, 424, 762 P2d 344 (1988). Evidence of the parties' original income levels is an essential element in proving a change in circumstances based on disparity of income. See Rubey, 165 Or App at 622 (in determining whether remarriage supplanted the purposes of a spousal support award, the court considered the actual amounts of income available to the parties at relevant intervals); see also Hoag and Hoag, 152 Or App 288, 293, 954 P2d 184 (1998).\\nHere, the trial court was left to speculate as to the difference between the parties' respective economic circumstances at the time of dissolution and their present positions. Because the court was not free to do so, husband did not establish an essential element of his claim \\u2014 a change in circumstances warranting termination of his support obligation. Therefore, the trial court did not err in granting wife's motion for dismissal under ORCP 54 B(2).\\nAffirmed.\\nAt trial, wife styled her motion as a motion for \\\"directed verdict.\\\" On appeal, the parties agree, as do we, that the motion should be treated as a motion for dismissal based upon ORCP 54 B(2), which provides:\\n\\\"After the plaintiff in an action tried by the court without a jury has completed the presentation of plaintiffs evidence, the defendant, without waiving the right to offer evidence in the event the motion is not granted, may move for a judgment of dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment of dismissal against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment of dismissal with prejudice against the plaintiff, the court shall make findings as provided in [ORCP1 62.\\\"\\nHusband does not argue that any of the other express purposes of the support award were satisfied. We assume that husband would be entitled to modification of the award merely by establishing that the disparity in the parties' incomes had been ameliorated.\"}"
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+"{\"id\": \"5854341\", \"name\": \"AMVESCO, INC., Appellant, v. KEY TITLE COMPANY OF BEND, Respondent\", \"name_abbreviation\": \"Amvesco, Inc. v. Key Title Co.\", \"decision_date\": \"1986-01-29\", \"docket_number\": \"32826; CA A31774\", \"first_page\": \"333\", \"last_page\": \"338\", \"citations\": \"77 Or. App. 333\", \"volume\": \"77\", \"reporter\": \"Oregon Reports, Court of Appeals\", \"court\": \"Oregon Court of Appeals\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-11T00:40:39.536686+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Richardson, Presiding Judge, and Warden and Newman, Judges.\", \"parties\": \"AMVESCO, INC., Appellant, v. KEY TITLE COMPANY OF BEND, Respondent.\", \"head_matter\": \"Argued and submitted June 12, 1985,\\nreversed and remanded January 29, 1986\\nAMVESCO, INC., Appellant, v. KEY TITLE COMPANY OF BEND, Respondent.\\n(32826; CA A31774)\\n713 P2d 614\\nHarold D. Gillis, Eugene, argued the cause and filed the briefs for appellant.\\nBrian J. MacRitchie, Bend, argued the cause for respondent. With him on the brief was Gray, Fancher, Holmes & Hurley, Bend.\\nBefore Richardson, Presiding Judge, and Warden and Newman, Judges.\\nRICHARDSON, P. J.\", \"word_count\": \"1365\", \"char_count\": \"8048\", \"text\": \"RICHARDSON, P. J.\\nPlaintiff is the sublessor of commercial real property in Bend. It brought this action against defendant, its tenant, for unpaid rent and real property taxes. At the close of plaintiffs case, defendant moved for a judgment of dismissal. Defendant asserts that plaintiff proved only the amount of rent reserved in the sublease and the amount of defendant's arrearage and that, to carry its burden of proof, plaintiff was required to and did not prove the difference between the stipulated rent and the fair market rental value of the premises or, alternatively, that \\\"it was unable to relet the premises and thereby recover the entire stipulated rent.\\\" Plaintiff responds that defendant had the burden of proving that plaintiff could have relet the premises. Plaintiff argues that the\\n\\\" burden was upon [defendant] to prove that [defendant] had surrendered the premises to [plaintiff] , or that [defendant] had abandoned the premises to [plaintiff] , or that [plaintiff] was in a position to mitigate its damages (which necessarily required surrender or abandonment).\\\"\\nThe trial court agreed with defendant and entered a judgment of dismissal without prejudice. Plaintiff appeals, and we reverse.\\nWe note initially that there were facts in the record, in the form of defendant's responses to requests for admission, sufficient to support the inference that defendant retained control of the premises and that plaintiff was therefore unable to mitigate its damages by reletting them. See ORCP 45D. However, because our reversal and remand may result in a new trial and because the dispute between the parties is about which of them has the burden of proving whether the premises could have been relet, the fact that plaintiff may have offered enough evidence at the first trial is not a sufficient answer to the question the parties pose.\\nBoth parties rely on Kulm v. Coast-to-Coast Stores, 248 Or 436, 432 P2d 1006 (1967), a landlord's action against a tenant for breach of a contract to renew a lease, in which the court said:\\n\\\"Plaintiff [landlord] takes the position that no matter how the rule of damages is stated, defendant [tenant] has the burden of proving that plaintiff could have mitigated his damages by leasing the premises to others. For this proposition plaintiff relies upon the language in Enco, Inc. v. F. C. Russell Co., 210 Or 324, 311 P2d 737 (1957), where the court held that the plaintiff had the duty to mitigate damages but that 'the defendant has the burden of proving that such mitigation is possible.' (210 Or at 339). The Eneo case merely states the universally accepted rule that defendant has the duty of proving that mitigation of damages by the plaintiff was possible and did not address itself to the question presented to this court. The question now before us is whether plaintiff, in order to make out his case, is required to establish as the measure of his damages the difference between the stipulated rental and the reasonable rental value of the premises.\\nit\\n\\\"In several Oregon cases involving contracts other than for the sale of goods we have held that plaintiff must prove more than the contract price. The principle applied in the cases involving contracts for the sale of goods and other contracts where the plaintiffs loss is normally less than the contract price, is equally applicable to contracts for the extension or renewal of a lease. In ordinary circumstances property which is the subject matter of a contract to execute or renew a lease can be leased to others upon the promissor's failure to accept the lease. Under such circumstances it is reasonable to assume, in the absence of proof to the contrary, that the lessor's loss is not the full amount of the stipulated rent but an amount which represents the difference between the stipulated rent and the rent which plaintiff would receive upon leasing the premises to others. If the plaintiff can show that there is no market for the leasehold, he can, of course, recover the entire amount of the rent reserved, but it is his burden to show this and if he does not, he has not made out his case. \\\" 248 Or at 439-42. (Footnote omitted.)\\nStated most succinctly, the issue here is whether, in the light of Kulm, the burden of proving inability to relet because of a tenant's continued possession is the landlord's, as part of its showing of damages, or the tenant's, as part of its affirmative showing that the landlord could have mitigated damages. The tenant had vacated the premises. Kulm states that a landlord, as an alternative to proving the rental value of the premises, may recover the full amount of the unpaid reserved rent upon a showing that \\\"there is no market for the leasehold\\\"; the court did not state that it is also part of the landlord's burden to establish the impossibility of placing the leasehold on the market due to the tenant's continued control. We hold that the landlord does not have that burden.\\nAlthough Kulm was decided on a burden of proof issue, its underlying premise is that a landlord has a duty to relet if possible and that, like a seller of unaccepted goods, he does not have the option of seeking damages that can be offset by resort to an available market. Kulm expanded on the earlier decision in Wright v. Baumann, 239 Or 410, 415, 398 P2d 119, (1965), where the court stated that, when the tenant has abandoned leased property, the landlord may not \\\"stand idly by the vacant, abandoned premises and treat them as the property of the tenant and recover full rent Given the basis for the holding in Kulm that the landlord must establish the nonexistence of a market to prove damages equal to the stipulated rent, we do not think it follows that the landlord must also establish that he has the control of the premises necessary for him to resort to any market that might exist.\\nProof that there is no market is a logical adjunct of the requirement that the landlord establish market value; proof that the landlord has control of the premises is a logical adjunct of the defensive showing that mitigation by reletting is a possibility. In our view, Kulm presupposes that leased premises are available for reletting before the landlord's duty to relet arises, and we conclude that proof of that availability is part of the tenant's showing of mitigation, rather than the landlord's showing of damages. We therefore agree with plaintiff that it carried its burden of proof and that the trial court erred by dismissing the action.\\nPlaintiff also argues that the trial court erred by awarding attorney fees to defendant. The award of attorney fees falls by virtue of our reversal of the judgment on the merits, and the specific reason plaintiff advances for contending that the fees should not have been awarded is not sufficiently likely to be a factor on remand to require discussion here.\\nReversed and remanded.\\nThe unpaid real property taxes are not an issue in this appeal, or at least the parties do not make them one.\\nNeither party argues, and we do not conclude, that the dismissal without prejudice is unreviewable under these circumstances. See Meadowbrook v. Groves, 60 Or App 26, 652 P2d 842 (1982).\\nThe principles announced in Kulm are applicable to the breach of a lease agreement as well as to a breach of a contract to renew a lease. See U.S. Nat'l Bank v. Homeland, 291 Or 374, 631 P2d 761 (1981); Davis v. Wilson, 261 Or 137, 141, 493 P2d 31 (1972).\\nThis opinion is concerned only with commercial tenancies. See U.S. Nat'l Bank v. Homeland, supra, 291 Or at 376, n 1.\"}"
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+"{\"id\": \"5894357\", \"name\": \"STATE OF OREGON, Plaintiff-Respondent, v. GLENN CHARLES PARKER, Defendant-Appellant\", \"name_abbreviation\": \"State v. Parker\", \"decision_date\": \"2014-10-15\", \"docket_number\": \"0606-47424; A134163\", \"first_page\": \"230\", \"last_page\": \"239\", \"citations\": \"266 Or. App. 230\", \"volume\": \"266\", \"reporter\": \"Oregon Reports, Court of Appeals\", \"court\": \"Oregon Court of Appeals\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T20:54:42.041274+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Armstrong, Presiding Judge, and Haselton, Chief Judge, and Nakamoto, Judge.\", \"parties\": \"STATE OF OREGON, Plaintiff-Respondent, v. GLENN CHARLES PARKER, Defendant-Appellant.\", \"head_matter\": \"Submitted on remand August 13,\\naffirmed October 15, 2014\\nSTATE OF OREGON, Plaintiff-Respondent, v. GLENN CHARLES PARKER, Defendant-Appellant.\\nMultnomah County Circuit Court\\n0606-47424; A134163\\n337 P3d 936\\nPeter Gartlan, Chief Defender, and Emily Schoonmaker, Deputy Public Defender, Legal Services Division, Office of Public Defense Services, filed the opening brief for appellant. Peter Gartlan, Chief Defender, and Joshua B. Crowther, Chief Deputy Defender, filed the supplemental brief.\\nHardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Anna M. Joyce, Assistant Attorney General, filed the answering brief for respondent. Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Tiffany Keast, Assistant Attorney General, filed the supplemental brief.\\nBefore Armstrong, Presiding Judge, and Haselton, Chief Judge, and Nakamoto, Judge.\\nHASELTON, C. J.\", \"word_count\": \"3087\", \"char_count\": \"19073\", \"text\": \"HASELTON, C. J.\\nThis case is on remand from the Oregon Supreme Court for a second time. For the reasons explained below, we now conclude that, because defendant was not seized for purposes of Article I, section 9, of the Oregon Constitution, the trial court did not err in denying defendant's motion to suppress. Accordingly, we affirm.\\nIn our original opinion, we vacated the trial court's denial of defendant's motion to suppress evidence found during the search of defendant's person and remanded the case to the trial court for reconsideration in light of our decision in State v. Ashbaugh, 225 Or App 16, 200 P3d 149 (2008) (Ashbaugh I), rev'd, 349 Or 297, 244 P3d 360 (2010) (Ashbaugh II), in which we had held that a subjective test applied to determine whether a defendant had been stopped. State v. Parker, 225 Or App 610, 202 P3d 205 (Parker I), adh'd to as modified on recons, 227 Or App 413, 206 P3d 259 (2009) (Parker II). After the Supreme Court reversed our decision in Ashbaugh I, it vacated our decision in Parker and remanded for reconsideration in light of its decision in Ashbaugh II. State v. Parker, 349 Or 663, 249 P3d 1281 (2011) (Parker III).\\nOn remand, noting that the facts of this case were \\\"materially indistinguishable\\\" from those in our decision in State v. Highley, 219 Or App 100, 180 P3d 1230 (2008) (Highley I), rev'd, 354 Or 459, 313 P3d 1068 (2013) (Highley II), we concluded that defendant had been unlawfully seized because a reasonable person in his position would have concluded that he was the subject of an investigation and not free to leave when the officer asked defendant whether he had any warrants, obtained defendant's identifying information, and then returned to his vehicle to run a check to determine whether defendant was the subject of any warrants. State v. Parker, 242 Or App 387, 255 P3d 624 (2011) {Parker IV). Following its reversal of our decision in Highley I, the Supreme Court vacated our decision in Parker IV and, once again, remanded this case for reconsideration in light of its decisions in Highley II, State v. Backstrand, 354 Or 392, 313 P3d 1084 (2013), and State v. Anderson, 354 Or 440, 313 P3d 1113 (2013). State v. Parker, 355 Or 751, 331 P3d 1010 (2014) (Parker V).\\nWith four amplifications noted below, we take the material facts and a description of the procedural history of this case from Parker I, reiterating as we did there that \\\" [t]he trial court expressly found both the police officers' and the defendant's accounts of the facts to be 'accurate, and a fair recitation of what occurred.'\\\" 225 Or App at 612.\\n\\\"Consistently with that finding, the salient facts here are as follows: On May 23, 2006, defendant was a passenger in a pickup truck stopped by Portland Police Officers Cioeta and Boman for expired license plate tags. Boman asked the driver and the other passenger for their identification and obtained their information. Cioeta asked defendant if he had any outstanding warrants; defendant replied that he did not. Cioeta then asked for defendant's identification,[ ] wrote down defendant's information, returned the identification, and then immediately returned to the police vehicle.\\n\\\"The officers ran all the occupants' information and checked them for warrants. In the meantime, at least one additional police vehicle arrived on the scene. Boman then asked the driver and another passenger to get out of the truck. The driver was cited for driving while suspended. Boman conducted a patdown search of the other passenger, informed him he was under arrest for an outstanding warrant, and placed him in custody. [Cioeta decided to tow the truck and inventory its contents because the driver's license was suspended.] Cioeta then approached defendant and asked him to get out of the truck. Cioeta asked defendant if he had any weapons; defendant denied that he did. Cioeta then asked for permission to search defendant, and defendant consented. Cioeta conducted a patdown search of defendant and retrieved a switchblade knife from defendant's pants pocket. [At no point during the encounter did Cioeta tell defendant that he was free to leave.] Defendant was arrested and subsequently charged with carrying a concealed weapon.\\n\\\"Before trial, defendant moved to suppress the evidence. The trial court denied that motion, concluding that 'regardless of anything that happened before, the consent was freely given and was voluntary.' Following a stipulated facts trial, the court convicted defendant of carrying a concealed weapon, ORS 166.240(1).\\\"\\nParker I, 225 Or App at 612-13.\\nOn remand, the dispositive issue is whether the encounter between defendant and the officers constituted a seizure for purposes of Article I, section 9. In supplemental briefing, relying on the historical and procedural facts as stated in Parker I, defendant contends that he was seized for purposes of Article I, section 9, because \\\"there were numerous shows of authority creating the type of police dominated atmosphere that would indicate to a reasonable person that they were not free to leave and terminate the encounter.\\\" Specifically, defendant explains:\\n\\\"[T]he facts demonstrate an unbroken chain of police dominated events: the officer stopped the car in which defendant was a passenger; the police investigated defendant's associates; the police arrested defendant's associates; the police controlled defendant's movement by removing him from the car; the police obtained defendant's information to start a criminal investigation; and the police disregarded the defendant's denial of wrongdoing and requested consent. At no time during th[at] sequence of events did defendant leave and return or engage in a 'cat and mouse' game of legerdemain with the officers. A reasonable person in that same position would believe that the officer was using his authority to seize the person until the investigation was complete or the officer indicated as much.\\\"\\n(Citation omitted.)\\nAs the Supreme Court explained in Ashbaugh II, a person is seized for purposes of Article I, section 9,\\n\\\"(a) if a law enforcement officer intentionally and significantly restricts, interferes with, or otherwise deprives an individual of that individual's liberty or freedom of movement; or (b) if a reasonable person under the totality of the circumstances would believe that (a) above has occurred.\\\"\\n349 Or at 316 (emphasis in original). The guiding principle in determining whether an encounter is a constitutionally significant seizure is whether the officer has manifested a \\\"show of authority\\\" that intentionally and significantly restricts an individual's liberty. Backstrand, 354 Or at 399 (\\\"What distinguishes a seizure (either a stop or an arrest) from a constitutionally insignificant police-citizen encounter 'is the imposition, either by physical force or through some \\\"show of authority,\\\" of some restraint on the individual's liberty.'\\\" (Quoting Ashbaugh II, 349 Or at 309.)).\\nA \\\"show of authority\\\" is a \\\"precise concept\\\" that requires \\\"a reasonable perception that an officer is exercising his or her official authority to restrain.\\\" Backstrand, 354 Or at 401. In other words, \\\"[e]xplicitly or implicitly, an officer must convey to the person with whom he is dealing, either by word, action, or both, that the person is not free to terminate the encounter or otherwise go about his or her ordinary affairs.\\\" Id. at 401-02. Although that \\\"inquiry necessarily is fact-specific and requires an examination of the totality of the circumstances,\\\" id. at 399, we and the Supreme Court have identified four salient principles, which inform our resolution of this case.\\nFirst, \\\"[p]assengers in a stopped vehicle \\u2014 whether [the vehicle has been] lawfully or unlawfully stopped \\u2014 are not seized merely by virtue of their status as passengers.\\\" State v. Ross, 256 Or App 746, 754, 304 P3d 759 (2013). As the Supreme Court explained in State v. Amaya, 336 Or 616, 630-31, 89 P3d 1163 (2004),\\n\\\"[i]t is a truism that all passengers in a validly stopped car have been 'stopped,' at least physically. However, such a stop is not a 'seizure' of those passengers for constitutional purposes. It also is true that an officer may take reasonable steps respecting the passengers, including, for example, asking the passengers to exit the vehicle so the officer may search the vehicle, assuming that the driver has consented to the search or that it otherwise is justified. However, an officer's further exercise of coercive authority over the passengers after they are out of the vehicle may, in certain circumstances, constitute a seizure.\\\"\\n(Citation omitted.) In other words \\\"a passenger is only seized when there has been the imposition, either by physical force or through some show of authority, of some restraint on the individual's liberty.\\\" Ross, 256 Or App at 754 (internal quotation marks omitted); see id. at 752 (\\\"Either a police 'show of authority' during a traffic stop is sufficient to constitute a seizure under Ashbaugh [II] with respect to a passenger or it is not.\\\").\\nSecond, \\\"[a] mere request for identification made by an officer in the course of an otherwise lawful police-citizen encounter does not, in and of itself, result in a seizure.\\\" Backstrand, 354 Or at 410. As the Supreme Court explained, \\\"the fact that an individual \\u2014 for reasons personal to that individual \\u2014 feels obliged to cooperate with the officer simply because of the officer's status is not the form or source of coercion that is of constitutional concern.\\\" Id. at 402. Applying that principle in Highley II, the court reasoned that the officer's inquiry about whether the defendant was on probation followed by a request for identification, was \\\"a straightforward request for information and cooperation of the kind that this court, since [State v.] Holmes, [311 Or 400, 813 P2d 28 (1991),] has continued to affirm police officers may make without implicating Article I, section 9.\\\" 354 Or at 469.\\nThird, in Backstrand \\u2014 as well as in Highley II and Anderson \\u2014 the Supreme Court \\\"repeatedly emphasized that neither briefly holding a person's identification card, nor calling in the person's identification information to check for warrants, necessarily and always meant that the person was stopped.\\\" State v. Thompson, 264 Or App 754, 759, 333 P3d 1125 (2014). As the Supreme Court explained in Highley II,\\n\\\"a person who decides to cooperate with an officer's request for identification reasonably can expect that the officer will do something with that identification, such as seek to verify the person's identity or status. That the officer either retains the identification for a reasonable time while doing so, or swiftly returns the identification and uses information from it for those purposes, are not actions that transform a noncoercive encounter into one in which the individual's liberty is significantly restrained through an exercise of coercive police authority.\\\"\\n354 Or at 470 (citations omitted).\\nFinally, as we reasoned in State v. Dudley, 245 Or App 301, 263 P3d 1054 (2011), rev den, 354 Or 838 (2014), unless coupled with other coercive actions, the combination of an officer (a) asking a passenger to get out of a car that the officer intends to search before having it towed due to the driver's arrest and (b) then seeking consent to search the passenger after he or she has denied having drugs or weapons in his or her possession does not constitute a \\\"show of authority.\\\" Specifically, in Dudley, we reasoned:\\n\\\"In this case, the officer's actions toward defendant did not amount to a 'show of authority' that restricted her movement such that she was 'stopped' when she consented to the officer's search of her purse. * [T]he officer's question whether defendant possessed any drugs or weapons was not a constitutionally significant 'show of authority,' and neither was his request that she step out of the car. Unlike in State v. Courtney, 242 Or App 321, 325, 255 P3d 577[, rev den, 351 Or 401] (2011), the officer's question and his request that defendant step out of the car were not coupled with any other show of authority, such as the officer's command to the defendant in Courtney that he place his hands on top of his head and interlace his fingers. It follows under Ashbaugh II that the officer did not 'intentionally and significantly' interfere with defendant's liberty or freedom of movement when he asked defendant to get out of the car and that a reasonable person in defendant's situation would not have believed that the officer had done so. Accordingly, we conclude that the trial court properly denied defendant's motion to suppress.\\\"\\n245 Or App at 306-07.\\nApplying those principles to the circumstances of the encounter in this case, we conclude that defendant was not stopped because the officer's actions toward defendant did not amount to a \\\"show of authority.\\\" Here, defendant was a passenger in a truck that was lawfully stopped by two officers. Officer Boman obtained identifying information from the driver and another passenger. Officer Cioeta spoke with defendant. In response to Cioeta's inquiry, defendant indicated that he had no outstanding warrants and provided identifying information, which the officer ran to check for warrants. As explained above, under the principles described in Backstrand, Highley II, and Anderson, those circumstances do not give rise to a constitutionally significant show of authority.\\nAs a result of running the occupants' information, the officer learned that the other passenger had an outstanding warrant. In the meantime, at least one additional police vehicle arrived. At that point, Boman asked the driver and the other passenger to get out of the truck. The driver was cited for driving with a suspended license, and the other passenger was arrested and placed in custody. Cioeta decided to tow the truck and inventory its contents because the driver's license was suspended.\\nAt that point in the encounter, a single officer\\u2014 Cioeta \\u2014 turned his attention to defendant, who had remained in the truck's passenger seat. Cioeta asked defendant to get out of the truck and inquired as to whether he had weapons. When defendant denied that he possessed weapons, Cioeta sought his consent to search. Although Cioeta did not tell defendant that he was free to leave at any point during the encounter, there is no evidence that Cioeta drew a weapon, raised his voice, or otherwise spoke in a manner that was nonconversational.\\nViewed in their entirety, those circumstances are materially indistinguishable from those in Dudley in which we held that the defendant was not seized for purposes of Article I, section 9. As in Dudley \\u2014 and consistently with the principles articulated in Backstrand and Highley II\\u2014 the circumstances here demonstrate that the officers asked defendant, a passenger in a lawfully stopped truck, for information (e.g, identifying information, whether he had any warrants or possessed weapons) and sought his cooperation in various respects (e.g., asking defendant to get out of the truck after the driver had been cited for driving with a suspended license, the other passenger had been arrested, and defendant had been unable to produce identification other than a work badge; asking for defendant's consent to search). Nothing about those circumstances demonstrates that Cioeta, explicitly or implicitly, conveyed to defendant that he was not free to terminate the encounter or otherwise go about his ordinary affairs. See Highley II, 354 Or at 473 (\\\"None of [the officer's] actions \\u2014 the request for identification, the check of defendant's probationary status, and the request for consent to search \\u2014 individually constituted a seizure. Considered in combination, they were simply acts that occurred sequentially. They did not combine to form a whole greater than the sum of their parts.\\\").\\nIn sum, given the totality of the circumstances, a reasonable person would not have believed that his or her liberty was significantly restrained. Accordingly, the trial court did not err in denying defendant's motion to suppress.\\nAffirmed.\\nArticle I, section 9 provides, in part, that \\\"[n]o law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure [.]\\\"\\nDefendant testified that he \\\"didn't really have ID, as such\\\" but showed Cioeta a work \\\"badge []\\\" with his \\\"picture on it.\\\" Cioeta asked defendant for his name and date of birth.\\nThe defendant in Dudley petitioned the Supreme Court for review of our decision. The court held that petition in abeyance pending the issuance of its decisions in Backstrand, Highley II, and Anderson. Following the issuance of its decisions in those cases, the Supreme Court denied review in Dudley.\\nSee State v. Smith, 247 Or App 624, 629, 270 P3d 382 (2012) (noting that, although it appeared that the officer had a valid reason related to the traffic stop for asking the defendant passenger to step out of the car \\u2014 that is, the officer intended to have the car towed after learning that the driver's license was suspended \\u2014 that reason was not expressed to the defendant when he was asked to step out of the car and the defendant was never told that he was free to leave; holding that \\\"the officer's question whether defendant possessed any drugs or weapons was not a constitutionally significant 'show of authority' and neither was his request that he step out of the car\\\"); State v. Jones, 241 Or App 597, 602, 250 P3d 452, rev den, 351 Or 318 (2011) (noting that the license of the driver was invalid and that the defendant and the other passenger had no identification; rejecting defendant's argument that \\\"a reasonable person, in the presence of three officers and three patrol cars with overhead lights on, at 4:30 a.m., having denied that he was carrying drugs or weapons, would, upon being asked thereafter for consent to search, feel that his liberty or freedom of movement had been constrained \\u2014 would feel, in other words, that he did not have the option of simply refusing to respond and walking away\\\"); see also State v. Lantzsch, 244 Or App 330, 260 P3d 662, rev den, 351 Or 318 (2011).\"}"
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+"{\"id\": \"6035357\", \"name\": \"In the Matter of Michael Anthony Ward, Richard Matthew Ward, Children STATE ex rel JUVENILE DEPARTMENT OF DOUGLAS COUNTY et al, Respondents, v. WARD, Appellant\", \"name_abbreviation\": \"State ex rel. Juvenile Department v. Ward\", \"decision_date\": \"1977-10-17\", \"docket_number\": \"No. 3476, CA 8208\", \"first_page\": \"[209]\", \"last_page\": \"[211]\", \"citations\": \"31 Or. App. 209\", \"volume\": \"31\", \"reporter\": \"Oregon Reports, Court of Appeals\", \"court\": \"Oregon Court of Appeals\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T19:58:35.192497+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Schwab, Chief Judge, and Johnson and Roberts, Judges.\", \"parties\": \"In the Matter of Michael Anthony Ward, Richard Matthew Ward, Children STATE ex rel JUVENILE DEPARTMENT OF DOUGLAS COUNTY et al, Respondents, v. WARD, Appellant.\", \"head_matter\": \"Argued September 27,\\naffirmed October 17, 1977\\nIn the Matter of Michael Anthony Ward, Richard Matthew Ward, Children STATE ex rel JUVENILE DEPARTMENT OF DOUGLAS COUNTY et al, Respondents, v. WARD, Appellant.\\n(No. 3476, CA 8208)\\n570 P2d 103\\nDarryl E. Johnson, P.C., Roseburg, argued the cause and filed the brief for the appellant.\\nBruce Tower, Public Defender, Roseburg, argued the cause and filed the brief for respondent children.\\nNo appearance for respondent State ex rel Juvenile Department of Douglas County.\\nBefore Schwab, Chief Judge, and Johnson and Roberts, Judges.\\nJOHNSON, J.\", \"word_count\": \"369\", \"char_count\": \"2287\", \"text\": \"JOHNSON, J.\\nAppellant mother appeals from an order terminating her parental rights in two of her three children pursuant to ORS 419.523 et seq. The two children subject to this petition, boys age three and five years, were first made wards of the juvenile court when the mother requested foster care placement through Children's Services Division in May of 1974. Following the temporary return to her custody of one of the boys, appellant signed a consent to adoption for both of the children in September of 1975, citing as her reason for such consent her inability to care for them. She subsequently revoked her consent, and a termination petition was filed in January of 1976.\\nAppellant contends that there is insufficient evidence to establish that she is \\\"unfit by reason of conduct or condition seriously detrimental to the child[ren] and integration of the childtren] into [her] home is improbable in the forseeable [sic] future due to conduct or conditions not likely to change .\\\" ORS 419.523(2); 419.525(2). On denovoreview, we conclude that the evidence in the record supports the order of termination. No useful purpose would be served by detailing the circumstances justifying termination. Suffice it to say that, while appellant clearly loves her children and believes that she could care for them with assistance, her intellectual and emotional deficiencies, which are unlikely to improve in the future, have caused her to live a transient life and seriously neglect her children. Their best interests would not be served by continuing them in wardship indefinitely in the dim hope that they may some day be returned to the biological mother whom they do not know.\\nAffirmed.\"}"
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+"{\"id\": \"6037306\", \"name\": \"STATE OF OREGON, Respondent, v. ANSON D. MINER, Appellant\", \"name_abbreviation\": \"State v. Miner\", \"decision_date\": \"1977-11-07\", \"docket_number\": \"No. DA 127700, CA 7953\", \"first_page\": \"[495]\", \"last_page\": \"[500]\", \"citations\": \"31 Or. App. 495\", \"volume\": \"31\", \"reporter\": \"Oregon Reports, Court of Appeals\", \"court\": \"Oregon Court of Appeals\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T19:58:35.192497+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Schwab, Chief Judge, and Lee and Richardson, Judges.\", \"parties\": \"STATE OF OREGON, Respondent, v. ANSON D. MINER, Appellant.\", \"head_matter\": \"Argued June 30,\\naffirmed November 7, 1977\\nSTATE OF OREGON, Respondent, v. ANSON D. MINER, Appellant.\\n(No. DA 127700, CA 7953)\\n570 P2d 998\\nStuart I. Teicher, Metropolitan Public Defender, Portland, argued the cause and filed the brief for appellant.\\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 Lee and Richardson, Judges.\\nRICHARDSON, J.\", \"word_count\": \"1305\", \"char_count\": \"7740\", \"text\": \"RICHARDSON, J.\\nDefendant appeals his conviction for Possession of a Stabbing Weapon, ORS 166.510, contending the weapon was obtained by an illegal search. That issue requires an application of the Oregon \\\"stop and frisk\\\" statutes, ORS 131.615 and 131.625. Defendant does not argue the police officer had insufficient grounds under ORS 131.615 to stop him but contends first, the officer must make \\\"reasonable inquiry\\\" before conducting a frisk and second, the totality of circumstances does not warrant a reasonable suspicion the defendant was aimed and presently dangerous. ORS 131.625.\\nThe searching police officer was on a routine patrol in a marked police car at approximately 4 a.m. He observed two males near the rear door of a restaurant which was not open for business at that hour. His suspicions were aroused and he turned his patrol car around to investigate. When he returned near the location where he first observed the two men they had left. He radioed for assistance from another police patrol unit with the intention of investigating a possible burglary and to confront the two men. He subsequently saw them walking down an alleyway between a grocery market and some apartment buildings. From the circuitous route they would have had to follow to arrive at that location the officer surmised they were trying to avoid him. The officer testified he had patroled this area for three years and knew it was a high crime area particularly for burglary and theft and that foot traffic was unusual at that hour.\\nOne of the persons was the defendant whom the officer did not know, however, the other was known to the officer as a \\\"convicted thief and a night person.\\\"\\nThe officer immediately confronted the defendant and told him he was going to conduct a pat-down search for weapons which he did, and discovered a switchblade knife in defendant's pocket. The officer testified that neither man made any threatening gestures or indicated in any way they were armed. He searched for weapons, he stated, because of the late hour, the fact he did not know the defendant but knew the other person was a convicted thief, the defendant was wearing baggy clothing which made it difficult to tell if he had a weapon and he wanted to make certain they were not armed before questioning them about a possible burglary.\\nDefendant challenges the search on essentially two grounds. First, he argues, assuming the officer had a reasonable suspicion for a stop under ORS 131.615, he must make a \\\"reasonable inquiry\\\" of defendant before conducting the pat-down search authorized by ORS 131.625. Secondly, he argues, there must be specific articulable facts supporting a reasonable suspicion that defendant was armed and dangerous before a pat-down search is justified. He challenges the search only on statutory not constitutional grounds. However, the exclusionary rule announced in Mapp v. Ohio, 367 US 643, 81 S Ct 1684, 6 L Ed 2d 1081, 84 ALR2d 933 (1961), is applicable to evidence obtained in violation of these two statutes. State v. Valdez, 277 Or 621, 561 P2d 1006 (1977). If the search was improper, the evidence must be excluded.\\nThese two statutes were enacted as part of the Revised Criminal Procedure Code and are an attempt to articulate the constitutional principles justifying a \\\"stop and frisk\\\" set out in Terry v. Ohio, 392 US 1, 88 S Ct 1868, 20 L Ed 2d 889 (1968). See, Proposed Oregon Criminal Procedure Code (1972), at 24.\\nORS 131.615 provides in material part:'\\n\\\"(1) A peace officer who reasonably suspects that a person has committed a crime may stop the person and, after informing the person that he is a peace officer, make a reasonable inquiry.\\n\\u00ab\\u00edfc 99\\nORS 131.625 states:\\n\\\"(1) A peace officer may frisk a stopped person for dangerous or deadly weapons if the officer reasonably suspects that the person is armed and presently dangerous to the officer or other persons present.\\n99\\n\\\"Reasonably suspects\\\" is given the following meaning in ORS 131.605(4):\\n\\\" 'Reasonably suspects' means that a peace officer holds a belief that is reasonable under the totality of the circumstances existing at the time and place he acts as authorized in ORS 131.605 to 131.625.\\\"\\nThe interrelationship between the section authorizing a \\\"stop\\\" (ORS 131.615) and that authorizing a \\\"frisk\\\" (ORS 131.625) is limited. Before a peace officer may conduct a \\\"frisk,\\\" he must have lawfully stopped the person pursuant to ORS 131.615. In other words he must be lawfully in a position to conduct the frisk. See, State v. Evans, 16 Or App 189, 517 P2d 1225, Sup Ct review denied (1974). Beyond that these sections give separate authority. The commentary by the Criminal Law Revision Commission charged with drafting the proposed code contains the following:\\n\\\" The provisions on 'frisk' are separated from the provisions of 'stop' so as to make it clear that a frisk does not always follow a stop. A frisk is a distinct procedure from a stop and must be justified on completely separate grounds. However, as was the case in Terry, the stop and frisk can occur simultaneously.\\\" Proposed Oregon Criminal Procedure Code (1972) at 27-28.\\nThese two sections, as the commentary indicates, are separate grounds for making a stop and then conducting a frisk. They do not set forth a police procedure code which must be followed seriatim to make a search lawful. It is not necessary for the peace officer to make an inquiry of the stopped person before he proceeds to search. The statute only requires he make a lawful stop and have a reasonable suspicion the stopped person is armed and dangerous before conducting a search. The circumstances known to the officer when he makes the stop may well in addition justify an immediate search for weapons for his own safety and the safety of others. To require any inquiry in that case may invoke the danger spoken of by Justice Harlan in his concurring opinion in Terry v. Ohio, supra:\\n\\u00ab There is no reason why an officer, rightfully but forcibly confronting a person suspected of a serious crime, should have to ask one question and take the risk that the answer might be a bullet.\\\" 392 US at 33.\\nDefendant's second contention is likewise rejected. The officer suspected the defendant and his companion were involved in a burglary. He was approaching these two individuals alone in an alleyway at an early hour. He knew one of the men had been convicted of theft. It is reasonable to infer that people who commit burglaries commonly carry weapons and thus present a danger to the officer who confronts them. See, State v. Fent, 29 Or App 249, 562 P2d 1239 (1977).\\nAffirmed.\\nDefendant's challenge to the search proceeds upon the assumption arguendo that the initial stop was justified under ORS 131.615. We therefore do not decide that issue but proceed, as does the defendant, to analyze the search as if the stop were legal.\\nORS 131.615 as enacted restricts the right to \\\"stop\\\" to situations where the peace officer reasonably suspects that a person \\\"has committed a crime.\\\" In this regard it adopts a different rule from the decision in Terry v. Ohio, 392 US 1, 88 S Ct 1868, 20 L Ed 2d 889 (1968), which concerned suspicion a crime was about to be committed.\"}"
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+"{\"id\": \"6038356\", \"name\": \"RAK, Respondents, v. STATE ACCIDENT INSURANCE FUND, Appellant\", \"name_abbreviation\": \"Rak v. State Accident Insurance Fund\", \"decision_date\": \"1977-10-17\", \"docket_number\": \"No. A 7612-17570, CA 8073\", \"first_page\": \"[125]\", \"last_page\": \"[129]\", \"citations\": \"31 Or. App. 125\", \"volume\": \"31\", \"reporter\": \"Oregon Reports, Court of Appeals\", \"court\": \"Oregon Court of Appeals\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T19:58:35.192497+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Schwab, Chief Judge, and Tanzer and Richardson, Judges.\", \"parties\": \"RAK, Respondents, v. STATE ACCIDENT INSURANCE FUND, Appellant.\", \"head_matter\": \"Argued August 16,\\nreversed October 17,\\nreconsideration denied December 7, 1977,\\npetition for review denied January 31, 1978\\nRAK, Respondents, v. STATE ACCIDENT INSURANCE FUND, Appellant.\\n(No. [ A XXXX-XXXXX ], CA 8073)\\n570 P2d 384\\nKevin L. Mannix, Assistant Attorney General, Salem, argued the cause for appellant. With him on the brief were James A. Redden, Attorney General, and W. Michael Gillette, Solicitor General, Salem.\\nRaymond Conboy, Portland, argued the cause for respondents. On the brief were Donald R. Wilson, Jeffrey S. Mutnick, and Pozzi, Wilson, Atchison, Kahn & O\\u2019Leary, Portland.\\nBefore Schwab, Chief Judge, and Tanzer and Richardson, Judges.\\nSCHWAB, C. J.\", \"word_count\": \"861\", \"char_count\": \"5079\", \"text\": \"SCHWAB, C. J.\\nThe significant question in this workers' compensation case is: Does this court have the inherent power to order that payment of compensation be stayed pending appeal in view of our holding in Wisherd v. Paul Koch, Volkswagen, 28 Or App 513, 559 P2d 1305, Sup Ct review denied (1977), that:\\n\\\" The clear intent of ORS 656.313 is to require the immediate payment of all compensation due by virtue of the order when the order is entered 28 Or App at 517.\\nLouis Rak died of a heart attack on August 19, 1969, while employed as a sheet metal worker. His widow filed a claim for benefits in November of 1975. The claim was denied by the State Accident Insurance Fund. For reasons which are not here relevant there is no contention before us that the claim is barred under ORS 656.265 as not timely filed.\\nThe hearing before a referee resulted in an order denying the claim on the basis that the claimant had failed to sustain her burden of proof that work activity was a material contributing factor to decedent's death. On review by the Workers' Compensation Board the referee's opinion was affirmed. The circuit court reversed and entered an order directing that the Fund accept the claim and pay benefits. As of the date that order was entered, under ORS 656.313, as interpreted in Wisherd, some $33,000 in accrued benefits became immediately payable.\\nThe Fund sought an order from us staying payment of these benefits pending a hearing of an appeal on the merits. Because of the possibility that ORS 656.313 might not be applicable to death benefits as distinguished from benefits due an injured claimant, we granted the stay. On the merits we find that the claimant has not established by a preponderance of the evidence that the decedent's work activity was a material contributing factor to his fatal heart attack. We agree with the referee that \\\" the passage of time after the work effort was too long to indicate a probable relationship between the work activity and the heart attack .\\\"\\nThe question remains as to the $33,000 referred to above. The Fund does not argue that there is any basis for distinguishing between a claim for death benefits and for injury and we see no basis in the statute for such a distinction. The Fund basically argues that while the statute in effect forbids an insurer from obtaining a stay as a matter of right pending appeal in the usual manner judgments are stayed pending appeal, it does not prohibit this court from granting a stay in the exercise of its inherent powers. In making this contention the Fund relies principally on Daly v. Wolfard Bros., Inc., 204 Or 241, 261 P2d 679, 262 P2d 917, 282 P2d 627, 54 ALR2d 1355 (1955).\\nWhatever the inherent powers of this court may be, they are not such as to allow us to act contrary to the dictates of a constitutional statute \\u2014 in this case ORS 656.313. In Daly the Supreme Court held that where threatened enforcement by execution of a respondent's judgment against an appellant would operate to satisfy the judgment and thus nullify any decree the Supreme Court might render relating thereto, or at least render such decree difficult of enforcement, the Supreme Court had the power to issue a temporary restraining order staying execution of judgment when an appropriate undertaking had in fact been filed subsequent to the issuance of a writ of execution. The express rationale for the holding in Daly v. Wolfard Bros., Inc., supra, operates to defeat the Fund's contention here, because the intent of ORS 656.313 is to insure that this court not have the power to retroactively negate the effect of the order of an inferior tribunal.\\nFor those who believe a result such as the one reached here is not equitable, the forum in which to seek a different rule is the legislature, not the courts.\\nThe order of the circuit court is reversed. The stay previously ordered is dissolved as of the date our mandate issues.\\nReversed.\\n\\\"(1) Filing by an employer or the State Accident Insurance Fund of a request for review or court appeal shall not stay payment of compensation to a claimant.\\n\\\"(2) If the board or court subsequently orders that compensation to the claimant should not have been allowed or should have been awarded in a lesser amount than awarded, the claimant shall not be obligated to repay any such compensation which was paid pending the review or appeal.\\\" ORS 656.313.\"}"
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+"{\"id\": \"746095\", \"name\": \"BAYRIDGE ASSOCIATES LIMITED PARTNERSHIP, formerly known as A & G Builders, Ltd., Respondent, v. DEPARTMENT OF REVENUE, STATE OF OREGON, Appellant; DURHAM PARK LIMITED PARTNERSHIP, Respondent, v. DEPARTMENT OF REVENUE, STATE OF OREGON, Appellant\", \"name_abbreviation\": \"Bayridge Associates Ltd. Partnership v. Department of Revenue\", \"decision_date\": \"1995-04-21\", \"docket_number\": \"OTC 3271; OTC 3272; SC S41163\", \"first_page\": \"21\", \"last_page\": \"41\", \"citations\": \"321 Or. 21\", \"volume\": \"321\", \"reporter\": \"Oregon Reports\", \"court\": \"Oregon Supreme Court\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T23:26:12.330637+00:00\", \"provenance\": \"CAP\", \"judges\": \"GRABER, J.\", \"parties\": \"BAYRIDGE ASSOCIATES LIMITED PARTNERSHIP, formerly known as A & G Builders, Ltd., Respondent, v. DEPARTMENT OF REVENUE, STATE OF OREGON, Appellant. DURHAM PARK LIMITED PARTNERSHIP, Respondent, v. DEPARTMENT OF REVENUE, STATE OF OREGON, Appellant.\", \"head_matter\": \"Argued and submitted January 5,\\njudgment of the Tax Court affirmed April 21, 1995\\nBAYRIDGE ASSOCIATES LIMITED PARTNERSHIP, formerly known as A & G Builders, Ltd., Respondent, v. DEPARTMENT OF REVENUE, STATE OF OREGON, Appellant. DURHAM PARK LIMITED PARTNERSHIP, Respondent, v. DEPARTMENT OF REVENUE, STATE OF OREGON, Appellant.\\n(OTC 3271)\\n(OTC 3272)\\n(SC S41163)\\n892 P2d 1002\\nRobert B. Rocklin, Assistant Attorney General, Salem, argued the cause for appellant. With him on the briefs were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General, Salem.\\nDavid P. Weiner and Anne L. Meagher, of Samuels, Yoelin, Weiner, Kan tor & Seymour, argued the cause and filed the brief for respondents.\\nGRABER, J.\\nVan Hoomissen, J., filed a dissenting opinion in which Fadeley, J., joined.\", \"word_count\": \"7302\", \"char_count\": \"44445\", \"text\": \"GRABER, J.\\nThis case involves the valuation, for ad valorem tax purposes in the tax year 1990-91, of two apartment complexes \\u2014 the Durham Park Apartments, located in Tigard, and the Bayridge Apartments, located in Beaverton. The Tax Court found that the true cash value of the Durham Park property was $6,535,000 and that the true cash value of the Bayridge property was $4,412,000. Bayridge Assoc. Ltd. Partnership v. Dept. of Rev., 13 OTR 24, 31 (1994). On de novo review, ORS 305.445, we affirm.\\nDurham Park Limited Partnership and Bayridge Associates Limited Partnership (taxpayers) receive federal income tax credits, under 26 USC \\u00a7 42 (IRC \\u00a7 42), in return for operating the properties at issue as low-income housing. The Tax Court held that that arrangement, as applied by the Oregon Housing Authority (OHA), constitutes a \\\"governmental restriction as to use\\\" of the properties under ORS 308.205(2) (1989). 13 OTR at 27-28. The Tax Court concluded that the \\\"governmental restriction as to use\\\" made taxpayers' appraisal based on actual or contract rents more accurate in determining the true cash value of the properties than the appraisal based on market rents conducted by the Department of Revenue (department). Id. at 31.\\nThe department appealed. The issue presented on appeal is a legal one: whether a property owner's participation in the section 42 low-income housing program constitutes a \\\"governmental restriction as to use\\\" of the property, thereby requiring a reduction in the assessed value of the property pursuant to ORS 308.205(2) (1989). There are no factual issues. The department and taxpayers agree about the operative facts, and they do not quarrel with each other's calculations; we simply must determine whose appraisal to accept.\\nDurham Park was completed in 1989. The project contains 224 living units in 28 eight-unit (8-plex) buildings. The 8-plexes are all three-story buildings. There are separate one-story buildings that contain garages, offices, and a recreation area. Durham Park was constructed, and is operated, as a low-income housing project.\\nThe Bayridge complex is similar to the Durham Park project. It is a multi-building, 246-unit development. Bay-ridge was constructed, and is operated, as a low-income housing project. Bayridge was 60 percent complete as of the assessment date.\\nUnder 26 IRC \\u00a7 42, the owner of an apartment complex may qualify for substantial income tax credits. As the Tax Court properly noted, \\\"[t]he laws governing income tax credits .and low-income housing are complex.\\\" 13 OTR at 26. See generally Andrew Zack Blatter and Elena Marty-Nelson, An Overview of the Low Income Housing Tax Credit, 17 U Balt L Rev 253 (1988) (providing a detailed examination of the operation of the low-income housing tax credit). A brief overview of that law will suffice for our purposes here.\\nThe low-income housing tax credit is available for certain low-income housing projects. IRC \\u00a7 42(a), (c)(2), (g). In order to qualify for that credit, the owner of, or investor in, an apartment complex must make available a certain number of rental units in the project for use by the general public on a residential (i.e., nontransient and noncommercial) basis for not less than 15 years. IRC \\u00a7 42(g), (i)(l). If the owner or investor qualifies, section 42 provides income tax credits to the owner or investor over a 10-year period, IRC \\u00a7 42(f)(1), based on the cost of the building and the proportion of the building used by low-income tenants, IRC \\u00a7 42(a)-(d).\\nThe Internal Revenue Code (Code) places a limit of $1.25 per capita on the aggregate amount for each taxable year that may be claimed as credits by all the taxpayers in a given state. IRS \\u00a7 42(h)(3)(C). The Code requires that \\\"the State housing credit ceiling for each calendar year shall be allocated to the housing credit agency of' each state. IRC \\u00a7 42(h)(3)(B). The state agency allocates those credits to owners or investors. IRC \\u00a7 42(h)(3)(A). In 1990, Oregon had $2,643,750 in tax credits to allocate.\\nIf a project fails to comply with the tenant and rent limitations in IRC \\u00a7 42 at any time during the 15-year compliance period, the taxpayer is subject to a recapture of a portion of the credit claimed. IRC \\u00a7 42(j). Additional taxes, plus interest, will be due as a result. IRC \\u00a7 42(j)(2). When a sale occurs before the end of the 15-year compliance period, it is possible to avoid recapture on the sale of a low-income housing project that qualifies for tax credits under IRC \\u00a7 42. To accomplish that, the seller of the project must post a bond in an amount satisfactory to, and for the period required by, the Secretary of the Treasury, if it reasonably is expected that the project will continue to be operated as a qualified low-income project for the remainder of the building's compliance period. IRC \\u00a7 42(j)(6). The amount of the required bond generally equals or exceeds the value of the credits claimed or available. See RevRul 90-60,1990-2, CB 2 (explainingbond).\\nIn Oregon, for the tax year in question, the OHA administered the distribution of federal tax credits for low-income housing. ORS 456.559(l)(f) (1989). That agency was established by statute, ORS 456.553(1) (1989), in response to the legislature's conclusion that there was an inadequate supply of low-income housing in Oregon and that it was the desire of the state to ensure an adequate supply of such housing. ORS 456.550 (1989). If a taxpayer received credits under IRC \\u00a7 42 and later failed to comply with the federal statutory requirement, OHA would report that noncompliance to the Internal Revenue Service. See Treas Reg \\u00a7 1.42-5(e)(l) (so providing).\\nUnder IRC \\u00a7 42, as already noted, the taxpayer claiming the credit must limit rents in the complex to obtain the tax credits. OHA set additional requirements. For example, OHA's allocation document pertaining to the properties in question incorporated by reference the terms and conditions set forth in taxpayers' applications for tax credits. Those applications provide that taxpayers must\\n\\\"[a]gree to rent, or hold available for occupancy, for 15 years at least 20% of the dwelling as Rent Restricted Units for low-income tenants whose incomes are 50% or less of area median gross income adjusted for family size, or at least 40% of the dwelling as Rent Restricted Units for low-income tenants whose incomes are 60% or less of area median gross income adjusted for family size.\\\"\\nAgainst that background, we examine the applicable Oregon statutes. ORS 308.232 (1989) required all property to be assessed at 100 percent of its true cash value. ORS 308.205 (1989), quoted at note 1, above, defined \\\"true cash value\\\" as \\\"the market value\\\" of the property. However, ORS 308.205(2) (1989) also provided that, when a property was \\\"subject to governmental restriction as to use,\\\" true cash value must be adjusted to reflect or take into account that restriction.\\nTaxpayers argue (and the Tax Court held) that the federal low-income housing tax credit program, as administered by OHA, constitutes a \\\"governmental restriction as to use\\\" that needs to be taken into account in determining the true cash value of the property pursuant to ORS 308.205(2) (1989). The department counters that the section 42 program is not a \\\"governmental restriction,\\\" because a \\\"governmental restriction\\\" must be involuntary and it must not be to a taxpayer's financial advantage. The department further contends that, even if the program is a \\\"governmental restriction,\\\" it is not a governmental restriction \\\"as to use\\\" of the property. For the reasons that follow, we agree with taxpayers and the Tax Court.\\nIn interpreting a statute, our task is to discern the intent of the legislature. ORS 174.020; PGE v. Bureau of Labor and Industries, 317 Or 606, 610, 859 P2d 1143 (1993). The text of the statutory provision in question is the best evidence of the legislature's intent and the starting point for our inquiry. Id. at 610. Words of common usage typically should be given their plain, natural, and ordinary meaning. Griffin v. Tri-Met, 318 Or 500, 508, 870 P2d 808 (1994).\\nWe use the foregoing principles in interpreting ORS 308.205(2) (1989). That statute did not define \\\"restriction.\\\" In ordinary usage, a \\\"restriction\\\" is:\\n\\\"1: something that restricts: QUALIFICATION: as a: a regulation that restricts or restrains b: a limitation placed on the use or enjoyment of real or other property; esp: an encumbrance on land restricting the uses to which it may be put.\\\" Webster's Third New Int'l Dictionary, 1937 (unabridged ed 1993).\\nA restriction thus is \\\"a limitation placed on the use or enjoyment\\\" of the property, without any necessary reference to the process that led to the placement of that restriction, without any necessary reference to the form of the restriction (e.g., by statute or by contract), and without any necessary reference to the absence of an economic benefit in exchange for placement of that restriction.\\nORS 308.205(2) (1989) also used, without definingit, the adjective \\\"governmental\\\" to modify the noun \\\"restriction.\\\" In ordinary usage, \\\"governmental\\\" means \\\"of or relating to government or to the government of a particular political unit.\\\" Webster's Third New Int'l Dictionary at 983. A \\\"governmental\\\" restriction thus is a limitation \\\"of the government of a particular political unit,\\\" placed on the use or enjoyment of property. There is no necessary reference to who initiated the process that led to the government's placement of a restriction on the property, nor is there a necessary reference to how the restriction is expressed (e.g., by statute or by contract), nor is there a necessary reference to whether the restriction was placed in exchange for an economic benefit.\\nAs noted above, the department first argues that the availability of section 42 tax credits does not create a \\\"governmental restriction,\\\" because (a) the taxpayer chooses to participate in the program and (b) the program results in financial gain to the taxpayer. We are not persuaded.\\nNothing in the text of ORS 308.205(2) (1989) suggests that a \\\"governmental restriction\\\" must be involuntary at its inception. Neither does the text suggest that a taxpayer may not derive an economic benefit from a \\\"governmental restriction.\\\" The text of ORS 308.205(2) (1989) does not distinguish between voluntary and involuntary, or between beneficial and nonbeneficial, \\\"governmental restrictions.\\\" We are not at liberty to read in such requirements. See ORS 174.010 (when this court interprets a statute, it may not \\\"insert what has been omitted, or omit what has been inserted\\\").\\nTaxpayers entered into an agreement with OHA that limited the rents that taxpayers could charge to tenants residing in taxpayers' properties and limited the pool of tenants to whom they could rent apartments. Taxpayers agreed to those limitations for a period of 15 years. As of the assessment date, those limitations restrained how taxpayers could enjoy their property. Those limitations came from a binding agreement with a governmental agency, the breach of which would entail serious financial consequences to taxpayers. Thus, the limitations were \\\"governmental restrictions.\\\"\\nThe department next argues that, even if participation in the section 42 low-income housing credit program is a \\\"governmental restriction,\\\" it is a \\\"governmental restriction as to income\\\" but not a \\\"governmental restriction as to use.\\\" (Emphasis added.) Again, we disagree.\\nThe noun \\\"use\\\" means, among other things, \\\"a method or manner of using something' '; ' 'the legal enj oyment of property that consists in its employment, occupation, exercise, or practice.\\\" Webster's Third New Int'l Dictionary at 2523. Utilizing that definition, a \\\"governmental restriction as to use\\\" includes a governmental restriction as to the method or manner of using the property in question, or as to how the property is employed or occupied.\\nAs already explained, taxpayers are subject to governmental restrictions concerning the persons to whom they may rent, as well as how much they may charge those to whom they rent. Furthermore, under those governmental restrictions, taxpayers must provide a certain number of residential housing units. That is, taxpayers must maintain at least a part of the complexes as residential. Even if taxpayers wanted to use the properties for nonresidential purposes (such as commercial purposes), and even if those uses were permitted by applicable zoning laws, the governmental restrictions placed on those properties would inhibit such a use. Those limits on what taxpayers may do with their properties, resulting from taxpayers' participation in the section 42 program, constitute \\\"governmental restriction[s] as to use.\\\"\\nThe context of ORS^308.205(2) (1989) supports the view that the legislature intended that the phrase \\\"governmental restriction as to use\\\" to encompass a broad realm of potential governmental limitations. The context of a statute includes other provisions of the same statute and other related statutes. PGE, 316 Or at 611.\\nThe provision that became ORS 308.205(2) (1989), containing the phrase \\\"governmental restriction as to use,\\\" was added to the statute in 1977 as part of Senate Bill 827. Or Laws 1977, ch 423, \\u00a7 2. Senate Bill 827 contained six sections:\\nSection 1 added a new provision to ORS chapter 308 to address downzoning, a situation in which \\\"the assessed value of any real property is reduced by reason of the adoption of or a change in the comprehensive plan, zoning ordinance, or zoning designation for such property not at the request of the owner.\\\" (Emphasis added.) Section 1 provided that the owner of a downzoned property may have that property reassessed to take into account the loss in value caused by the downzoning. Section 1 is codified as ORS 308.341.\\nSection 2 added what became ORS 308.205(2) (1989), the statute that we are called on to apply in this case. The remaining substantive sections of Senate Bill 827 addressed the notification of property owners and assessors concerning the downzoning of their property and are codified as ORS 308.342 and 308.343.\\nSection 2 embraced all forms of \\\"governmental restriction^] as to use,\\\" in contrast to the other sections, which were directed more specifically at downzoning. Moreover, while section 1 expressly limited the tax benefit to involuntary downzoning, section 2 contained no similar requirement for other forms of governmental restriction as to use. In addition, downzoning is defined to result in an economic detriment to the taxpayer, while other forms of governmental restriction as to use are not.\\nThis court assumes that, when the legislature includes a provision in one section of an act, but omits it from another, it does so intentionally. PGE, 317 Or at 611. Thus, we must give effect to the distinctions drawn by the legislature (a) between voluntary downzoning, from which a taxpayer may not receive a tax benefit, and other forms of governmental restriction as to use, which omit the concept of voluntariness; and (b) between downzoning, which is defined to result in an economic detriment to the taxpayer, and other forms of governmental restriction as to use, which omit the requirement of economic detriment. We conclude that a \\\"governmental restriction as to use,\\\" ORS 308.205(2) (1989), need not be involuntary and may result in an economic benefit to the taxpayer.\\nSo understood, ORS 308.205(2) (1989) encompasses, as a \\\"governmental restriction as to use,\\\" taxpayers' participation in the section 42 program. Because the intent of the legislature when it enacted ORS 308.205(2) (1989) is clear from the text and context of the statute, further inquiry is not required. See PGE, 317 Or at 611 (stating principle).\\nAs noted at the outset, the parties do not attack the calculations made by each others' appraisers. The department's data do not reflect the limits placed on the properties as a result of the \\\"governmental restriction[s] as to use\\\"; taxpayers' data do reflect the limitations placed on the properties. Accordingly, we adopt taxpayers' valuations.\\nThe department does argue that, even if we treat participation in the section 42 program as a \\\"governmental restriction as to use,\\\" we should \\\"consider the receipt of tax credits as additional income that increases the value of the property.\\\" The Tax Court reasoned that\\n\\\"an underlying assumption of market value is that the market will only pay for those benefits it will receive. If tax benefits are limited to the first owner or are recaptured when a property is transferred, such benefits will not enter into market considerations.\\\" 13 OTR at 29.\\nWe agree with that reasoning. OAR 150-308.205(A)(l)(a) (1989) defined market value as \\\"the most probable price in terms of money which a property will bring if exposed for sale in the open market.\\\" The most probable price depends on what the buyer will receive in exchange for that price; the buyer will pay only for what it will receive. Thus, the most probable price to be received for the properties at issue would not include the tax credits, because the record shows that the credits would be recaptured if the property were not maintained as low-income housing.\\nFor the foregoing reasons, we find that, for tax year 1990-91, the true cash value of the Durham Park property was $6,535,000 and the true cash value of the Bayridge property was $4,412,000.\\nThe judgment of the Tax Court is affirmed.\\nThe Oregon Housing Authority has been succeeded by the Housing and Community Services Department. ORS 456.555.\\nORS 308.205 (1989) provided in part:\\n\\\"True cash value of all property, real and personal, means the market value of the property as of the assessment date. True cash value in all cases shall be determined by methods and procedures in accordance with rules adopted by the Department of Revenue and in accordance with the following:\\n\\\"(2) If the property is subject to governmental restriction as to use on the assessment date under applicable law or regulation, true cash value shall not be based upon sales that reflect for the property a market value that the property would have if the use of the property were not subject to the restriction unless adjustments in value are made reflecting the effect of the restrictions.\\\"\\nWe also note that prior decisions from this court indicate that voluntarily incurred limitations on the use of property may be considered in assessing the value of a piece of property. See, e.g., Tualatin Development v. Dept. of Rev., 256 Or 323, 473 P2d 660 (1970) (when the taxpayer voluntarily agreed with county planning commission to set aside \\\"open areas\\\" to be retained as a golf course in return for a zone change permitting a planned residential community, and the golf course is operated at a loss, court affirmed Tax Court's decision that golf course had no \\\"true cash value\\\" for tax years at issue).\"}"
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+"{\"id\": \"8642297\", \"name\": \"MOORE, Respondent on review, v. MOTOR VEHICLES DIVISION, Petitioner on review; In the Matter of the Refusal to Submit to a Breath Test by: SCHENK, Respondent on review, v. MOTOR VEHICLES DIVISION, Petitioner on review; In the Matter of the Refusal to Submit to a Breath Test by: BUNTEN, Respondent on review, v. MOTOR VEHICLES DIVISION, Petitioner on review; In the Matter of the Refusal to Submit to a Breath Test by: JAGGER, Respondent on review, v. MOTOR VEHICLES DIVISION, Petitioner on review; In the Matter of the Refusal to Take a Breath Test by: CARTER, Respondent on review, v. MOTOR VEHICLES DIVISION, Petitioner on review\", \"name_abbreviation\": \"Moore v. Motor Vehicles Division\", \"decision_date\": \"1982-10-26\", \"docket_number\": \"CA 18130; CA A20656; CA 18170; CA A20153; CA A21023; SC 28452\", \"first_page\": \"715\", \"last_page\": \"726\", \"citations\": \"293 Or. 715\", \"volume\": \"293\", \"reporter\": \"Oregon Reports\", \"court\": \"Oregon Supreme Court\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-09-21T20:02:18.861595+00:00\", \"provenance\": \"Harvard\", \"judges\": \"Before Lent, Chief Justice, and Linde, Peterson, Tanzer, Campbell and Carson, Justices.\", \"parties\": \"MOORE, Respondent on review, v. MOTOR VEHICLES DIVISION, Petitioner on review. In the Matter of the Refusal to Submit to a Breath Test by: SCHENK, Respondent on review, v. MOTOR VEHICLES DIVISION, Petitioner on review. In the Matter of the Refusal to Submit to a Breath Test by: BUNTEN, Respondent on review, v. MOTOR VEHICLES DIVISION, Petitioner on review. In the Matter of the Refusal to Submit to a Breath Test by: JAGGER, Respondent on review, v. MOTOR VEHICLES DIVISION, Petitioner on review. In the Matter of the Refusal to Take a Breath Test by: CARTER, Respondent on review, v. MOTOR VEHICLES DIVISION, Petitioner on review.\", \"head_matter\": \"Argued and submitted July 14,\\naffirmed October 26, 1982\\nMOORE, Respondent on review, v. MOTOR VEHICLES DIVISION, Petitioner on review. In the Matter of the Refusal to Submit to a Breath Test by: SCHENK, Respondent on review, v. MOTOR VEHICLES DIVISION, Petitioner on review. In the Matter of the Refusal to Submit to a Breath Test by: BUNTEN, Respondent on review, v. MOTOR VEHICLES DIVISION, Petitioner on review. In the Matter of the Refusal to Submit to a Breath Test by: JAGGER, Respondent on review, v. MOTOR VEHICLES DIVISION, Petitioner on review. In the Matter of the Refusal to Take a Breath Test by: CARTER, Respondent on review, v. MOTOR VEHICLES DIVISION, Petitioner on review.\\n(CA 18130)\\n(CA A20656)\\n(CA 18170)\\n(CA A20153)\\n(CA A21023)\\n(SC 28452)\\n(consolidated on review)\\n652 P2d 794\\nStephen F. Peifer, Assistant Attorney General, Salem, argued the cause for petitioner on review. With him on the petition were Dave Frohnmayer, Attorney General, Stanton F. Long, Deputy Attorney General, and William F. Gary, Solicitor General, Salem.\\nRonald D. Thom and Zack M. Lorts, Oregon City, filed a response to the petition for respondent on review Schenk.\\nTerrence B. O\\u2019Sullivan of Merrill and O\\u2019Sullivan, Bend, filed a response to the petition for respondent on review Carter. Oral argument was waived as to all respondents on review.\\nNo appearance for respondents on review Moore, Bunten and Jagger.\\nBefore Lent, Chief Justice, and Linde, Peterson, Tanzer, Campbell and Carson, Justices.\\nTANZER, J.\", \"word_count\": \"3165\", \"char_count\": \"18864\", \"text\": \"TANZER, J.\\nIn each of these five consolidated cases, the Court of Appeals reversed a Motor Vehicles Division (MVD) order suspending a driver's license which the court held to be invalid under the Implied Consent Act, ORS 487.805 et seq. In each case, the licensee, upon being requested to submit to a breath test, asked or demanded to speak to an attorney. We allowed the state's petition for review to attempt to clarify principles applicable to drivers' license suspension proceedings.\\nThe Motor Vehicles Division issued these orders pursuant to ORS 482.540 which requires the agency to suspend an operator's license for 120 days upon receipt of notice that the motorist has refused a chemical test of his breath. The Implied Consent Act provides that a motorist impliedly consents to chemical testing of his breath if he is arrested for driving under the influence of intoxicants and if a police officer having probable cause to believe he committed the offense asks him to submit to a breath test. ORS 487.805(1) provides:\\n\\\"Any person who operates a motor vehicle upon the highways of this state shall be deemed to have given consent, subject to ORS 487.805 to 487.835, to a chemical test of the person's breath for the purpose of determining the alcoholic content of the person's blood if the person is arrested for driving a motor vehicle while under the influence of intoxicants in violation of ORS 487.540 or of a municipal ordinance. A test shall be administered upon the request of a police officer having reasonable grounds to believe the person arrested to have been driving while under the influence of intoxicants in violation of ORS 487.540 or of a municipal ordinance.\\\"\\nORS 487.805(2) sets out request and refusal procedures. It is phrased in the negative; that is, the test may not be administered if, after advice of the consequences of refusal (license suspension) and the permissibility of an independent test, the person refuses to submit to the test. ORS 487.805(2) states:\\n\\\"No chemical test of the person's breath shall be given, under subsection (1) of this section, to a person under arrest for driving a motor vehicle while under the influence of intoxicants in violation of ORS 487.540 or of a municipal ordinance, if the person refuses the request of a police officer to submit to the chemical test after the person has been informed of:\\n(a) The consequences of a refusal under ORS 482.540 to 482.560 and this section; and\\n(b) The person's rights [to independent testing] under ORS 487.810.\\\"\\nTaken together, ORS 482.540 and 487.805 provide a procedure whereby the state may suspend drivers' licenses. The statutes divide assigned procedural responsibilities among different agencies, namely police agencies and the Motor Vehicles Division. Unlike situations where the action of one governmental agency may not bind another, these statutes establish one procedure culminating in a single state action, a license suspension, even though at least two agencies perform the requisite acts upon which that action is based. Therefore, in this statutory setting, an examination into the lawfulness of MVD orders must include scrutiny of both police action and MVD action for statutory and constitutional validity.\\nThe Court of Appeals, with two opinions citing our plurality holding in State v. Newton, 291 Or 788, 636 P2d 393 (1981) (decided after these cases were submitted in the Court of Appeals), vacated the suspensions. Newton is distinguishable in that it is a criminal case regarding suppression or admissibility of evidence, whereas these cases present a civil review of the legality of administrative action. Nevertheless, several premises to the Newton decision are pertinent here. Most significant was our holding that an arrested person is entitled to communicate with counsel or others and that the police must reasonably accommodate a request to do so unless it would interfere with their duties. The plurality opinion identified the Fourteenth Amendment as the source of this liberty to communicate and the separate opinions looked to other sources, but all members of the court agreed that it exists and that it is subject to reasonable restriction for lawful police purposes. We said:\\n\\u00ab Defendant's freedom to call a lawyer before deciding to submit to breathalyzer testing was not safeguarded in this situation by the Sixth or Fourth Amendments, but, under the Fourteenth Amendment, his freedom to do so could not be foreclosed or deferred unless the police were authorized to do so. Defendant's liberty to communicate as he chose was to be free from 'purposeless restraints,' but subject to lawful restraints. \\\" (Our emphasis.) Id. at 806-807.\\nThe most compelling source of \\\"lawful restraints\\\" in the Implied Consent Act cases relate to the fact that blood alcohol dissipates with the passage of time. We recognized that promptness was necessary:\\n\\\"The police may lawfully restrict the freedom of an arrested person to communicate to the degree reasonably required for the performance of their duties. For example, where the police are authorized to seize 'highly evanescent evidence,' see Heintz, 286 Or at 248, and delay caused by an attempt to call counsel would impair their ability to effectively do so, they may require that the arrested person's exercise of the freedom to call be deferred until after completion of the seizure.\\\" Id. at 807-808.\\nBecause the Newton record showed no circumstances which would justify denying the defendant an opportunity to call his lawyer, we held that the denial violated the defendant's rights and the breath test was unlawfully obtained. Our decision not to suppress the result of the test in a resulting criminal prosecution does not diminish the substantive holding that an unjustified refusal to allow an arrested person to call counsel is unlawful. That holding has different consequences where, as here, the decisional inquiry is the lawfulness of an agency's action rather than whether unlawfully obtained but trustworthy evidence should be admissible in a criminal prosecution.\\nIn this case, the scope of a hearing challenging Implied Consent Act orders of suspension is governed by ORS 482.550(2):\\n\\\"The scope of the hearing shall be limited to:\\n(a) Whether the person at the time he was requested to submit to a test was under arrest for driving a motor vehicle while under the influence of intoxicants in violation of ORS 487.540 or of a municipal ordinance;\\n(b) Whether the police officer had reasonable grounds to believe, at the time the request was made, that the person refusing to submit to the test had been driving under the influence of intoxicants in violation of ORS 487.540 or of a municipal ordinance;\\n(c) Whether the person refused to submit to a test;\\n(d) Whether such person was informed of the consequences, under ORS 482.540 to 482.560, of his refusal to submit to the test; and\\n(e) Whether such person was informed of his rights as provided in ORS 487.810.\\\"\\nJudicial review of the administrative order of suspension is allowed by ORS 482.560(1):\\n\\\" The trial in the circuit court shall be de novo and the appellant shall have the right to a jury as provided in criminal actions.\\\"\\nWe take the reference to \\\"trial de novo\\\" to mean that the same issues, those specified in ORS 482.550(2), are presented on judicial review as were material at the administrative hearing.\\nThe argument in this case has focused on ORS 482.550(2)(c), \\\"Whether the person refused to submit to a test.\\\" The state contends that we should adopt the rule applied by the Court of Appeals in Stratikos v. Dept. of Motor Vehicles, 4 Or App 313, 477 P2d 237, 478 P2d 654 (1970), rev den (1971); see also Lundquist v. Motor Vehicles Div., 23 Or App 507, 543 P2d 29 (1975), and Cavagnaro v. Motor Veh. Div., 19 Or App 725, 528 P2d 1090 (1974), that anything other than immediate submission to a request for a breath sample is a refusal. The rule is taken from an oft-cited passage from a leading New Jersey case:\\n\\\" As a matter of law, defendant had no right to have the advice of an attorney before determining whether he would accede to the test, insofar as the sanction of revocation for refusal is concerned. [Citations omitted.]\\n\\\"In any event, the request for consultation with counsel necessarily involved a delay in administration of the test. Having in mind the remedial purpose of the statute, and the rapidity with which the passage of time and the physiological processes tend to. eliminate evidence of ingested alcohol in the system, it is sensible to construe the statute to mean that anything substantially short of an unqualified, unequivocal assent to an officer's request that the arrested motorist take the test constitutes a refusal to do so. The occasion is not one for debate, maneuver or negotiation, but rather for a simple 'yes' or 'no' to the officer's request.\\\" Stratikos v. Dept. of Motor Vehicles, 4 Or App at 315, quoting State v. Pandoli, 109 NJ Super 1, 4, 262 A2d 41 (1970).\\nWe agree with the general thrust of a rule requiring immediate submission and regarding any substantial delay as a refusal, but the rule must be applied with a flexible regard for arrested persons' freedom to communicate.\\nAlso, we agree that a refusal to submit need not be explicit. ORS 487.805 does not suggest that there is no refusal unless and until the arrested person says \\\"I refuse.\\\" The word \\\"refusal,\\\" as used in the Implied Consent Act, means non-submission. Newton, 291 Or at 792-93. Thus, if an arrested driver is requested to submit to a breath test and, after the statutorily required advice is given he does not promptly do so, he has refused to submit. The refusal is implicit in his conduct.\\nOn the other hand, there is not necessarily a refusal every time an arrested person fails to snap to like a recruit at the command of a drill sergeant. Otherwise, the Act would be more an administrative snare for the non-alacritous than an evidence-gathering process for release or prosecution. The construction and application of the statute must allow for both the public need to seize \\\"highly evanescent evidence,\\\" see State v. Heintz, 286 Or 239, 248, 594 P2d 385 (1979), and that which we recognized in Newton as the liberty of an arrested person to communicate promptly upon arrest if it does not unreasonably interfere with performance of police duties.\\nWe also held in Newton that the advice routinely given by the Oregon State Police was not necessarily correct in every case. That advice was:\\n\\\" 'Regardless of any information you may have received before this request, the fact is that you are not entitled to have an attorney present at this breath test. Any request for a delay on this ground will constitute a refusal. '\\\" Id. at 791.\\nThe advice may often be technically correct in that the time ordinarily taken to arrange for the attendance of counsel would likely impair the effectiveness of the test. Insistence on such a delay would be non-submission or refusal. On the other hand, it is conceivable that such arrangements could be speedily made without impairing the test. A request is not a delay. Insistence, as a condition of taking the test, can be a delay.\\nThese cases involve requests and insistence to speak to attorneys rather than requests to have an attorney present. The routinely given advice is not apt.\\nA request to call a lawyer (or a relative or friend) is not in itself a refusal. It cannot be seized upon as a decisive event which ends the transaction between officer and arrestee as would non-submission or express non-refusal. On the other hand, an insistence on speaking to counsel under circumstances where to do so would significantly delay the testing would be non-submission constituting a refusal. We recognize that injecting circumstantial considerations into the process makes it less predictable than would strict application of the New Jersey rule, but it also makes it less draconian and more accommodative of liberty.\\nWe hold that if an arrested person, upon being given the advice required by ORS 487.805(2)(a) and (b), does not submit promptly to the request, his non-submission is a refusal. We further hold that if the person requests to speak with an attorney, the request itself is not a refusal and the person must be afforded reasonable opportunity to do so unless or until it would interfere with effective administration of the test. For example, a person might be given opportunity to call during the 15-minute observation period without affecting the validity of the test. If a person requests to communicate and is afforded a reasonable opportunity to do so, consistent with the temporal requirements of the testing process, and the person does not submit to the test, that is a refusal.\\nIf an arrested person asks to speak to counsel, an unjustified failure to afford reasonable opportunity to do so would be a deprival of the person's liberty, see Newton. In that situation, the person's non-submission (i.e., refusal) would have resulted from a legally unauthorized procedure. An administratively imposed penalty based on that procedure would be invalid.\\nOur holdings apply variously to the cases at bar. We take the facts largely from the petition for review which, in turn, takes them from the record or from the Court of Appeals.\\nMoore v. MVD\\nMoore was arrested for DUII, and the police officers requested that he take a breath test. Rather than explicitly agreeing or refusing to take the test, Moore kept repeating \\\"I want an attorney.\\\" The police advised Moore of his rights under the Implied Consent Law, the consequences of refusal, and that, if he insisted on telephoning his attorney, his response would treated as a refusal. When he continued to ask for an attorney, the officers told him that his insistence was deemed to be a refusal. Shortly thereafter, Moore was permitted to telephone his attorney but was unable to reach him.\\nThe officers did not thereafter request Moore to take the breathalyzer test because as far as they were concerned, petitioner had already refused, and a refusal form had been filled out stating that petitioner's refusal resulted from his requesting to talk to his attorney.\\nPetitioner Moore's conduct in requesting counsel was not a refusal. To have deemed it a refusal was erroneous. Had the police allowed Moore to try to call his lawyer prior to a final request, a different case would be presented. The order as to Moore must be vacated.\\nSchenk v. MVD\\nArrested for DUII and taken to the Clackamas County Jail, Schenk was offered a breath test. In response, Schenk stated that he wanted to talk to an attorney but did not expressly refuse to take the test. According to the officer,\\n\\\"He kept saying that he wanted to call his attorney first. I advised him that under the circumstances if he didn't take the test, that it would be considered a refusal. He said he wasn't refusing but he wanted to talk to an attorney. He said an attorney. He didn't say which one. I asked \\u2014 or advised him that that wasn't possible and read him the consequences and rights of a driver under the implied consent law, advised him that any request for delay would constitute a refusal. He still wouldn't take the test.\\nThe order as to Schenk must be vacated for the same reason as in the Moore case.\\nBunten v. MVD\\nBunten was arrested for driving under the influence of intoxicants and taken to the Washington County Jail. On arrival, he was asked to take a breath test; he asked if he could call his attorney before submitting to the test; he was told he could not. Petitioner then refused to take the test without advice from counsel.\\nBunten actually refused. The refusal, however, was the direct result of a procedural error, the unjustified deprival of Bunten's liberty to call his attorney. The order as to Bunten must be vacated.\\nJagger v. MVD\\nThe police arrested Jagger for DUII, took him to the Linn County Jail, and requested that he take a breath test. Jagger refused to do so, stating that he wanted to contact an attorney. The police then refused to permit Jagger to use an available telephone for this purpose and informed him of the statutory consequences of his refusal. He was also read the routine advice that he was \\\"not entitled to have an attorney present at this breath test. Any request for a delay on this ground will constitute a refusal.\\\" This advice, of course, was not responsive to Jagger's request.\\nThese facts could be analyzed either as those in Moore or as in Bunten. Either way, the order as to Jagger must be vacated.\\nCarter v. MVD\\nCarter, having been arrested for DUII, was offered a breath test. He responded, \\\"Not without the advice of my attorney,\\\" which MVD found to be a refusal to submit to the test. The parties stipulated that the sole issue for trial is whether Carter's statement was a refusal. No facts were shown or issue presented regarding a request to speak to counsel. Carter's response was not a submission and, for purposes of the Implied Consent Act, is deemed a refusal. The order of suspension must be upheld.\\nIn Moore, Schenk, Bunten and Jagger, the Court of Appeals is affirmed.\\nIn Carter, the Court of Appeals and the circuit court are reversed.\\nAlso, the Health Division of the Department of Human Resources has responsibilities for regulating testing procedures. ORS 487.815.\"}"
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+"{\"id\": \"8693819\", \"name\": \"STATE OF OREGON, Appellant, v. BILL ROBERT PENA and SANDRA LEE PENA (No. 33281), Respondents\", \"name_abbreviation\": \"State v. Pena\", \"decision_date\": \"1973-12-10\", \"docket_number\": \"\", \"first_page\": \"582\", \"last_page\": \"586\", \"citations\": \"15 Or. App. 582\", \"volume\": \"15\", \"reporter\": \"Oregon Reports, Court of Appeals\", \"court\": \"Oregon Court of Appeals\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-11T00:40:36.343327+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Schwab, Chief Judge, and LaNgtry and TaNzer, Judges.\", \"parties\": \"STATE OF OREGON, Appellant, v. BILL ROBERT PENA and SANDRA LEE PENA (No. 33281), Respondents.\", \"head_matter\": \"Argued November 26,\\naffirmed December 10, 1973\\nSTATE OF OREGON, Appellant, v. BILL ROBERT PENA and SANDRA LEE PENA (No. 33281), Respondents.\\n516 P2d 761\\nThomas II. Denney, Assistant Attorney General, Salem, argued the cause for appellant. \\\"With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.\\nFred A. YecJc, Newport, argued the cause for respondents. On the brief were MacPherson, Carstens & Menegat; Noel, Minor & Yeck and Kurt Carstens, Newport.\\nBefore Schwab, Chief Judge, and LaNgtry and TaNzer, Judges.\", \"word_count\": \"1001\", \"char_count\": \"5891\", \"text\": \"LANGTRY, J.\\nThe state appeals from an order dismissing an information which also barred further prosecution of the case. The charge was for a Class C felony, first degree theft. ORS 164.055 (1) (a). ORS 138.060 (1) provides authority for such an appeal. The state contends the court exceeded its discretion in the order it made. The charging part of the information alleged:\\n\\\"That said Bill Robert Pena and Sandra Lee Pena on the 14th day of May A.D. 1973, in the said County of Lincoln and State of Oregon, then and there being, and then and there acting together, did unlawfully and knowingly commit theft of\\n\\\"[Eleven items of jewelry are individually alleged.]\\nin aggregate transaction, of the total value of more than two-hundred dollars, the property of Michael Harold Taylor and Larry Edward Juris\\nDefendants waived indictment and submitted to information on May 21,1973. A demurrer alleging that the information improperly stated two crimes was filed May 23. On May 21 the case had been set for trial on May 30. On May 29 arguments were heard by the court on the demurrer and it was overruled. The contention of the defendants was that the alleged thefts from Taylor and Juris were different transactions in that they were of different property and occurred at separate times and places on the same day. The prosecutor contended that though this was so the separate transactions were part of a continuing scheme and could be aggregated to make two Class A misdemeanors, both theft in the second degree (ORS 164.045), a felony by adding together the value of the items taken from the different people. ORS 164.055 (1) (a). .\\nThe demurrer was overruled because from the face of the information it did not appear that the allegations necessarily described two transactions. This ruling was correct under our decision in State v. Clipston, 3 Or App 313, 319-20, 473 P2d 682 (1970). In Clipsion we also held that upon trial, when from evidence it appears that some counts are improperly joined and that fact is not apparent upon the face of the indictment, it is proper then for the court to order elimination of the improperly joined counts.\\n\\u2022On May 30 at the time set for trial the district attorney ,asked the court whether its ruling upon the demurrer required that the state must prove the stolen property was jointly owned by Taylor and Juris, to which the court answered:\\n[T]he State could prove either that it's jointly owned or elect which one it was owned by.\\\"\\nThe district attorney then asked for an agreement for an amended 'information. Defendants' respective counsel would not agree. The district attorney moved for a continuance which the court refused. He then asked the court, under the provisions of OES 136.120, to rule that the information be \\\"retained\\\" in order that the matter could be submitted to the grand jury for an indictment to replace the information. This the court refused to do, saying:\\n\\\"The Court takes the position that the information states a crime which would be provable. There's a jury waiting and has been waiting for 20 minutes\\n*\\nLater the court said:\\n\\\" [T]he issue is that there is a good and valid charge, and parties had adequate notice. There is a jury waiting. We will call it for trial and then we will go from there\\nThe court then called the case for trial, the district attorney refused to proceed and the court dismissed the information. Cf. State v. Pflieger, 15 Or App 383, 515 P2d 1348 (1973).\\nThis court then had under advisement State v. Barnes, 14 Or App 23, 511 P2d 1235 (1973). In the decision in that case, we interpreted ORS 164.055 (1) (a)\\n\\\" as authorizing Aggregation' .only if the component acts are a part of the same 'transaction' as that word has been previously defined by the Oregon Supreme Court.\\\" (Footnote omitted.) 14 Or App at 33.\\nUnder such definitions our opinion makes it clear that separate thefts by the same person or persons at different places and times from different people cannot be aggregated to make two misdemeanor thefts in the second degree into one felony theft in the first degree. When the district attorney sought a continuance in order to get an 'indictment, he made it clear he still intended to try to present the felony charge. Thus, he was seeking what could not be.\\nThe trial court was correct when it said the information presented at least one good charge of Class A misdemeanor, theft in the second degree. When the district attorney refused to proceed further, we cannot say that the court acted beyond the limits of the discretion accorded it by ORS 136.120 in. refusing to retain the matter. Two reasons appear for this: (1) The district attorney waited a week after filing of the demurrer and until a jury was waiting to make the request; and (2) the district attorney even then wanted to try to state a defective theory of aggregation which ultimately would have occasioned more delay and, in the end, probably the same result. In the interval the defendants were being held in jail though ready for trial.\\nAffirmed.\\nORS 136.120 provides:\\n\\\"If the district attorney is not ready and does not show any sufficient cause for postponing the trial, the court shall order the indictment to be discharged, unless, being of opinion that the public interests require it directs it to be retained.\\\"\"}"
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+"{\"id\": \"94864\", \"name\": \"Tricia BOSAK and James Sager, Petitioners, v. Hardy MYERS, Attorney General, State of Oregon, Respondent\", \"name_abbreviation\": \"Bosak v. Myers\", \"decision_date\": \"2002-03-29\", \"docket_number\": \"SC S48536\", \"first_page\": \"589\", \"last_page\": \"591\", \"citations\": \"333 Or. 589\", \"volume\": \"333\", \"reporter\": \"Oregon Reports\", \"court\": \"Oregon Supreme Court\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-11T01:00:54.453577+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Tricia BOSAK and James Sager, Petitioners, v. Hardy MYERS, Attorney General, State of Oregon, Respondent.\", \"head_matter\": \"On modified ballot title filed March 21,\\nnew modified ballot title certified March 29, 2002\\nTricia BOSAK and James Sager, Petitioners, v. Hardy MYERS, Attorney General, State of Oregon, Respondent.\\n(SC S48536)\\n43 P3d 430\\nNo appearance by petitioners.\\nJas. Jeffrey Adams, Assistant Attorney General, Salem, filed the modified ballot title for respondent. With him on the filing memorandum were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.\\n333 Or 39, 37 P3d 980 (2001) (referring ballot title for modification); 333 Or 512, 41 P3d 1082 (2002) (referring modified ballot title for additional modification).\", \"word_count\": \"497\", \"char_count\": \"3460\", \"text\": \"The court in this ballot title review proceeding determined that the Attorney General's certified ballot title for Initiative Petition 40 (2002) failed to comply substantially with statutory standards and, under ORS 250.085(8), referred the ballot title to the Attorney General for modification. Bosak v. Myers, 333 Or 39, 37 P3d 980 (2001). The Attorney General filed a modified ballot title for the proposed initiative measure, petitioners objected, and the court determined that the modified ballot title failed to comply substantially with statutory standards. Bosak v. Myers, 333 Or 512, 41 P3d 1082 (2002). The court referred the modified ballot title to the Attorney General for additional modification. See ORS 250.085(10)(b) (directing use of procedure set out in ORS 250.085(9) for modified ballot titles referred to Attorney General for additional modification).\\nThe Attorney General has filed a new modified ballot title for the proposed initiative measure, and no party has objected. See ORS 250.085(9) (setting out period within which party may object to modified ballot title and requiring court to certify modified ballot title if no objection filed).\\nThe new modified ballot title for Initiative Petition 40 (2002) states:\\n\\\"AMENDS CONSTITUTION: ALLOWS PUBLIC EMPLOYEES TO RECEIVE UNION REPRESENTATION SERVICES WITHOUT PAYMENT; DECLARES INDIVIDUAL RIGHT TO 'BARGAIN'\\n\\\"RESULT OF YES' VOTE: Yes' vote allows public employees to receive union representation services without payment unless they request representation; declares right of individuals to 'bargain' directly with employers.\\n\\\"RESULT OF 'NO' VOTE: 'No' vote rejects allowing public employees to receive union representation services without payment unless representation requested; declares right of individuals to 'bargain' directly with employers.\\n\\\"SUMMARY: Amends constitution. If a workplace is represented by a union, existing law precludes the employer and individual employees from making agreements inconsistent with the collective bargaining agreement, requires union to represent all employees in unit, and allows union to negotiate agreement requiring all employees to contribute to representation costs. Measure allows public employees to receive union representation services without payment, unless public employee requests representation in writing. Authorizes public employee to cancel request for union representation services upon 30 days written notice. Declares right of individual employees of state and political subdivisions, including local governments and school districts, to 'bargain' directly with employers about wages and benefits. Measure does not define 'bargain.' Prohibits discrimination against employees for exercising rights created by this amendment. Other provisions.\\\"\\nThe new modified ballot title is certified.\"}"
\ No newline at end of file
diff --git a/or/94900.json b/or/94900.json
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+"{\"id\": \"94900\", \"name\": \"STATE OF OREGON, Respondent on Review, v. SEIKOH SAYEN MANIVONG, Petitioner on Review\", \"name_abbreviation\": \"State v. Manivong\", \"decision_date\": \"2002-02-22\", \"docket_number\": \"CC 960947154; CA A99652; SC S49038\", \"first_page\": \"415\", \"last_page\": \"415\", \"citations\": \"333 Or. 415\", \"volume\": \"333\", \"reporter\": \"Oregon Reports\", \"court\": \"Oregon Supreme Court\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-11T01:00:54.453577+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Carson, Chief Justice, and Gillette, Durham, Leeson, Riggs, and Balmer, Justices.\", \"parties\": \"STATE OF OREGON, Respondent on Review, v. SEIKOH SAYEN MANIVONG, Petitioner on Review.\", \"head_matter\": \"On petition for review filed November 21, 2001,\\npetition for review allowed; decision of Court of Appeals reversed, order of circuit court affirmed, and case remanded to circuit court for further proceedings February 22, 2002\\nSTATE OF OREGON, Respondent on Review, v. SEIKOH SAYEN MANIVONG, Petitioner on Review.\\n(CC 960947154; CA A99652; SC S49038)\\n40 P3d 505\\nKimi Nam, Deputy Public Defender, Salem, filed the petition for petitioner on review. With her on the petition was David E. Groom, Acting Executive Director of the Office of Public Defense Services.\\nNo appearance contra.\\nBefore Carson, Chief Justice, and Gillette, Durham, Leeson, Riggs, and Balmer, Justices.\\nDe Muniz, J., did not participate in the consideration or decision of this case.\", \"word_count\": \"164\", \"char_count\": \"1019\", \"text\": \"MEMORANDUM OPINION\\nThe petition for review is allowed. The decision of the Court of Appeals is reversed. State v. Fugate, 332 Or 195, 26 P3d 802 (2001). The order of the circuit courtis affirmed, and the case is remanded to the circuit court for further proceedings.\"}"
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--- /dev/null
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+"{\"id\": \"990586\", \"name\": \"Nancy L. POWELL, an individual, Remington Powell, a minor, through his Guardian ad Litem Nancy L. Powell, Appellants, v. Stan BUNN, individually and as Superintendent of Public Instruction; Portland Public School District No. 1J, Respondents\", \"name_abbreviation\": \"Powell v. Bunn\", \"decision_date\": \"2002-12-11\", \"docket_number\": \"9805-03567; A108090\", \"first_page\": \"334\", \"last_page\": \"366\", \"citations\": \"185 Or. App. 334\", \"volume\": \"185\", \"reporter\": \"Oregon Reports, Court of Appeals\", \"court\": \"Oregon Court of Appeals\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T19:05:11.031520+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Haselton, Presiding Judge, and Linder and Wollheim, Judges.\", \"parties\": \"Nancy L. POWELL, an individual, Remington Powell, a minor, through his Guardian ad Litem Nancy L. Powell, Appellants, v. Stan BUNN, individually and as Superintendent of Public Instruction; Portland Public School District No. 1J, Respondents.\", \"head_matter\": \"Argued and submitted November 9, 2001,\\nHood River High School, Hood River, affirmed December 11, 2002\\nNancy L. POWELL, an individual, Remington Powell, a minor, through his Guardian ad Litem Nancy L. Powell, Appellants, v. Stan BUNN, individually and as Superintendent of Public Instruction; Portland Public School District No. 1J, Respondents.\\n9805-03567; A108090\\n59 P3d 559\\nAndrea R. Meyer argued the cause for appellants. With her on the briefs was Paul R. Meyer.\\nJanet Metcalf, Assistant Attorney General, argued the cause for respondent Stan Bunn. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.\\nWilliam H. Walters argued the cause for Portland Public School District No. 1J. With him on the brief were Jeffrey B. Millner and Miller Nash, LLP.\\nBefore Haselton, Presiding Judge, and Linder and Wollheim, Judges.\\nLINDER, J.\", \"word_count\": \"12399\", \"char_count\": \"78245\", \"text\": \"LINDER, J.\\nThe Portland Public School District (district) allows community organizations to use school facilities, subject to certain restrictions. The Pacific Cascade Council of the Boy Scouts of America (Boy Scouts) is one of the organizations that takes advantage of that policy. For schools underserved by scouting programs, particularly those with disadvantaged student populations, the Boy Scouts engages in an outreach program designed to encourage interested school-aged boys to join the Boy Scouts. Plaintiff is the mother of a boy enrolled in one of the district's schools. Plaintiff brought these proceedings in circuit court to challenge the district's policy of permitting the Boy Scouts to make in-school membership presentations to students, contending that the Boy Scouts is a religious organization whose in-school activities violate state constitutional and statutory prohibitions of governmental establishment of religion. The circuit court rejected plaintiffs challenges. Plaintiff appeals, and we affirm.\\nI. BACKGROUND\\nA. Procedural Posture\\nBefore describing the factual circumstances that gave rise to this dispute, it is helpful to clarify the procedural posture of the case and the nature of the record before us. To raise her objections to the Boy Scouts' access to public schools, plaintiff filed a complaint with the Superintendent of Public Instruction (superintendent) alleging a violation of ORS 327.109. In it, plaintiff asserted that the district, by permitting the Boy Scouts to present membership information to boys on school premises, \\\"sponsors, financially supports or is actively involved with religious activity.\\\" In response, the superintendent conducted a preliminary investigation, after which he issued an order entitled \\\"Finding of Preliminary Investigation.\\\" The superintendent concluded in that order that there was no substantial basis to believe that the district was impermissibly involved with religious activity. He therefore declined to hold a contested case hearing to determine whether state funding should be withdrawn from the district, which is the sanction that the statute provides if a complaint is well founded.\\nPlaintiff sought judicial review of the superintendent's order in circuit court pursuant to the procedures for review of an order in other than a contested case. See ORS 183.484. In her complaint, she also pleaded claims for civil declaratory and injunctive relief against the district, alleging that the district's policy and practice of permitting the Boy Scouts to have access to its schools to encourage membership in their organization violates the Oregon Constitution's prohibition against an establishment of religion. By way of relief on those claims, plaintiff sought an injunction prohibiting the district from continuing to allow the Boy Scouts to present membership information to students on public school premises.\\nAll parties moved for summary judgment in their favor in the respective actions. The circuit court granted summary judgment in favor of each defendant in the two actions and denied plaintiffs motions for summary judgment. On appeal, plaintiff assigns error to the grant of summary judgment for each defendant and the denial of summary judgment in her favor. See To v. State Farm Mut. Ins., 123 Or App 404, 410, 860 P2d 294 (1993), aff'd in part, rev'd in part on other grounds, 319 Or 93, 873 P2d 1072 (1994).\\nThe procedural posture of the case is important for its bearing on our standard of review. The standard of review for cross-motions for summary judgment is a familiar one. Each party that moves for summary judgment has the burden of demonstrating that there are no material issues of fact and that the movant is entitled to judgment as a matter of law. McKee v. Gilbert, 62 Or App 310, 321, 661 P2d 97 (1983). The trial court must view the evidence and all reasonable inferences it may support in the light most favorable to the nonmoving party and determine whether the moving party, despite that view of the evidence, is entitled to judgment as a matter of law. ORCP 47 C; Jones v. General Motors Corp., 325 Or 404, 420, 939 P2d 608 (1997). On appeal, the trial court's \\\"standard for decision\\\" becomes our standard of review. We therefore review the evidence and all reasonable inferences in the light most favorable to the nonmoving party and determine whether the moving party is entitled to judgment as a matter of law. Jones, 325 Or at 420. In the case of cross-motions for summary judgment, we determine which party is entitled to judgment as a matter of law. Stevens v. Bispham, 316 Or 221, 223, 851 P2d 556 (1993).\\nThat standard of review applies without difficulty to the judgment for the district on plaintiffs civil claim for declaratory and injunctive relief. But it is not appropriate for the judgment in favor of the superintendent on judicial review of the superintendent's administrative order. The circuit court's charge in that proceeding was to test the superintendent's factual determinations for \\\"substantial evidence,\\\" which meant that the circuit court was to decide only whether \\\"the record, viewed as a whole, would permit a reasonable person to make\\\" the factual findings that the superintendent made. ORS 183.484(5)(c). On appeal, our function is to determine whether the circuit court correctly applied the standards of its review under ORS 183.484. Teel Irrigation Dist. v. Water Resources Dept., 135 Or App 16, 23, 898 P2d 1344 (1995), aff'd in part and vac'd in part, 323 Or 663, 919 P2d 1172 (1996). Our review of factual issues, then, is limited to whether the circuit court correctly decided that the order is supported by substantial evidence. United Citizens v. Environmental Quality Comm., 104 Or App 51, 54, 799 P2d 665 (1990), rev den, 311 Or 151 (1991). In short, the general standards for summary judgment \\u2014 and, in particular, viewing factual disputes in the light most favorable to a nonmoving party \\u2014 are not appropriate in the judicial review of an administrative order in a noncontested case proceeding.\\nAs a practical matter, the procedural posture of the proceeding reviewing the superintendent's order does not impair our ability to review the circuit court judgment, because the issue ultimately is a legal one only. In the circuit court, plaintiff did not challenge any of the superintendent's factual findings as unsupported by the record, and she does not do so on appeal. The crux of her argument is that the superintendent incorrectly interpreted the legal standards that should apply to her challenge. The same argument forms the centerpiece of her position with respect to her civil declaratory and injunctive action, where summary judgment was an appropriate procedural mechanism to invoke, but the parties were (and remain) in agreement that there were no disputed issues of material fact. Thus, although the standards of review that apply to the civil action and the review proceeding differ, ultimately they converge, because the inquiry for both is legal only. We therefore review the cross-motions for summary judgment in plaintiffs civil action for declaratory judgment and injunctive relief to determine which party \\u2014 plaintiff or the district \\u2014 was entitled to judgment as a matter of law, which entails reviewing whether the trial court correctly applied the law to the facts. We review the judgment in favor of the superintendent on review of his order to determine if the trial court correctly interpreted and applied the correct legal standards. Teel Irrigation Dist., 135 Or App at 23.\\nB. The Facts\\nPursuant to what appears to have been the mutual agreement of all concerned, the trial court treated the superintendent's order, together with affidavits, exhibits, and documentation submitted in support of the summary judgment motions, as a single record on which both proceedings (i.e., the civil action and the review proceeding) should be resolved. The record before us for our review therefore consists of the express factual findings in the superintendent's order, together with the evidentiary record developed by the combined summary judgment submissions. Although the parties disagree as to the legal significance of certain facts, the pertinent facts themselves are not disputed.\\nPursuant to formally promulgated policies, the district permits \\\"responsible school and nonschool organizations, associations, and individuals\\\" to have access to school grounds and facilities during and after school hours under specified conditions. The district does so recognizing that schools and facilities are tax supported and that access for community groups enriches the education and the welfare of the students and enhances community life generally. The groups that the district's policies specifically anticipate will use school facilities at various times for various purposes include (1) school organizations (such as school clubs and parent-teacher organizations); (2) principal-approved nonschool organizations for students under the age of 21 (such as Boy Scouts, Girl Scouts, Campfire Girls, YMCA Clubs, and 4-H Clubs); and (3) nonprofit clubs or groups organized for education, recreation, health, culture, civic betterment, community enrichment, or neighborhood services. District policies pertaining to community access primarily address activities that are prohibited or restricted. For example, on-premises solicitation of students for gifts and things of value is constrained, as is activity involving the sale of merchandise by nonstudents. Of significance to this case, district policy prohibits in absolute terms the \\\"distribution in any manner of any book, testament, pamphlet, tract or other printed matter of any religious character whatsoever on the school premises during the school day by nonstudents.\\\"\\nThe Boy Scouts is among the community organizations that have availed themselves of the district's school-access policy. The Boy Scouts of America is a national organization with a goal of making scouting available to all youths who meet its membership requirements. To that end, the local Boy Scouts makes a concerted effort to reach out to youth who are underserved by scouting programs, particularly disadvantaged youth and minority communities. That effort involves, among other efforts, identifying elementary schools in the district for outreach activities and attention. Once the outreach program appears to be succeeding in a particular school, the outreach activities at that school are discontinued.\\nIn a typical elementary school visit, a Boy Scouts representative arranges with the school's principal for a convenient time during the day to make a presentation to the students; usually, the presentation is made in the lunchroom. The representative makes the presentation in less than five minutes, inviting interested boys and their parents to attend an upcoming \\\"Scout Night\\\" to learn more about scouting and, if they choose, to join the Boy Scouts. The representative brings literature for distribution. Boys who want the literature may take it home to share with their parents. Although the representative extends an invitation to an orientation meeting, he does not engage in any direct recruiting. Neither does the representative deliver a religious message of any sort or distribute any literature referring to or mentioning religion.\\nThe Boy Scouts' activities at Harvey Scott Elementary School, when plaintiff's son was a student there, were consistent with a typical Boy Scouts school presentation. In 1996, when plaintiffs son was in the first grade, the Boy Scouts engaged in outreach activities in an effort to encourage boys at the school to get involved in scouting. The first such outreach activity occurred in September of that year, when the Boy Scouts provided one-page flyers to school staff for distribution to students.\\nPlaintiffs son received one of the flyers from his teacher. The flyers consisted primarily of illustrations of boys involved in recreational activities (e.g., playing sports, planting trees, camping, birdwatching, practicing archery, flying kites, and making crafts). In large lettering, they stated \\\"Get in on the Fun\\\" and \\\"You can join now!\\\" In smaller lettering, they read \\\"Tiger Cubs for First Graders,\\\" \\\"Cub Scouts for 2nd & 3rd Graders,\\\" and \\\"Webelos for 4th & 5th Graders.\\\"\\nThe next month, two Boy Scouts representatives obtained permission from the Harvey Scott Elementary School principal to provide information to students during the lunch hour about joining Cub Scouts. A school staff member supervising the students in the cafeteria introduced the representatives, after which the representatives spoke briefly. They announced that they were there to provide information about a Boy Scouts membership meeting and that interested boys could raise their hands to receive that information. The representatives described the general kinds of activities involved in scouting but did not touch on anything having to do with religious beliefs or religious activities. The representatives did not hand out any flyers at that time. Rather, the only information they distributed was in the form of wristbands that read:\\n\\\"COME JOIN CUB SCOUT PACK 16! ROUND-UP FOR NEW CUB SCOUTS FOR BOYS IN GRADES 1-5 [.] TODAY from 7-8 pm (10-15-96)[.] Scott Elementary School[.] Questions? Call Chrissy Smith @\\n(Underscoring in original.) The informational wristbands were provided to students who expressed an interest in receiving them and were to be worn home by students so that their parents would receive the information about the meeting time and place. The school staff member supervising the students provided limited assistance by putting wristbands on interested boys at the table near where she was standing. Although not all boys wanted information about the meeting, many did. Plaintiffs son was among those who did, and he obtained a wristband.\\nThe next year, in September 1997, a Boy Scouts representative made a similar visit during a school lunch hour to encourage boys to consider joining. The record does not reflect that plaintiffs son was in the lunch room on that occasion. The announcement was similar to the one made the year before. It was brief and was limited to giving students general information about scouting and telling them that any boy interested could have a wristband with information about the membership meeting. The only notable difference from the prior year's presentation was that wristbands were not placed on students' wrists during the presentation. Instead, the students were told that the Boy Scouts representative would be outside the cafeteria and that interested students could approach him to obtain a wristband.\\nPlaintiff complained to district officials about the policy of permitting the Boy Scouts access to schools and students when, after investigating the organization further, plaintiff determined that her son could not join because he was an atheist. To join, a boy must take the Scout Oath and agree to obey Scout Law. Through the Scout Oath, a boy pledges to honor his duty to God and his duty to his country, to help others, and to obey Scout Law. The Scout Law to which a scout must subscribe is to be \\\"trustworthy, loyal, helpful, friendly, courteous, kind, obedient, cheerful, thrifty, brave, clean, and reverent.\\\" Because the Scout Oath and general scouting principles require a belief in God, persons who do not have that belief, such as atheists, are not eligible for membership. Although a belief in God is necessary for membership, the organization is otherwise nondenominational.\\nThe Boy Scouts of America is a nonprofit charitable organization chartered by Congress in 1916 \\\"to promote, through organization, and cooperation with other agencies, the ability of boys to do things for themselves and others, to train them in scoutcraft, and to teach them patriotism, courage, self-reliance, and kindred virtues, using methods that were in common use by boy scouts on June 15,1916.\\\" 36 USC \\u00a7 30902 (2001). The Boy Scouts strives to instill in its members the values contained in the Scout Oath and Scout Law, including patriotism, courage, and self-reliance. The stated purposes of cub scouting, as identified for parents in the Cub Scout handbook, include:\\n\\u2022 positively influencing character development and encouraging spiritual growth\\n\\u2022 helping boys develop habits and attitudes of good citizenship\\n\\u2022 encouraging good sportsmanship and pride in growing strong in mind and body\\n\\u2022 improving understanding within the family\\n\\u2022 strengthening their ability to get along with other boys and to respect other people\\n\\u2022 fostering a sense of personal achievement by helping boys develop new interests and skills\\n\\u2022 showing how to be helpful and do one's best\\nThe Boy Scouts does not provide any sectarian instruction. Rather, it encourages the scouts' personal spiritual growth by inviting them to explore their religious values with their parents and through any church, synagogue, or religious fellowship to which they belong. Any such exploration is voluntary.\\nII. STANDING AND MOOTNESS\\nTo meet constitutional justiciability requirements, a plaintiff invoking a court's jurisdiction to resolve a controversy must demonstrate that the interests of the parties litigant are adverse and that a decision by the court will have a practical effect on the plaintiffs rights. Utsey v. Coos County, 176 Or App 524, 540, 32 P3d 933 (2001), rev allowed, 334 Or 75 (2002). The requirement that the court's decision have a practical effect on the party invoking the court's jurisdiction must remain satisfied throughout the litigation. Id. If the court's decision will not have a practical effect on the plaintiff because the plaintiff cannot demonstrate an injury or other impact on a legally recognized interest, the case will be dismissed based on the plaintiffs lack of standing. Poddar v. Clatsop County, 167 Or App 170, 2 P3d 928, adhered to on recons, 168 Or App 556, 7 P3d 677, rev den, 331 Or 193 (2000). Relatedly, \\\"[c]ases that are otherwise justiciable, but in which a court's decision no longer will have a practical effect on or concerning the rights of the parties, will be dismissed as moot.\\\" Brumnett v. PSRB, 315 Or 402, 406, 848 P2d 1194 (1993). Those standing requirements apply with equal force in administrative proceedings brought to the courts for judicial review as in other actions, such as declaratory judgment actions brought pursuant to ORS chapter 28. Utsey, 176 Or App at 546-47.\\nIn her complaint challenging the superintendent's order and seeking declaratory and injunctive civil relief against the district, plaintiff pleaded her status as a resident and taxpayer in Multnomah County and in the State of Oregon. Plaintiff further pleaded that she was at all times the mother of Remington Powell, who was then a seven-year-old minor and a student at Harvey Scott Elementary School, and that the district's policy of permitting the Boy Scouts to have access to district schools is \\\"an impermissible expenditure of taxpayer monies by a public entity\\\" under Article I, sections 2, 3, and 5, of the Oregon Constitution. As part of her allegations challenging the superintendent's order, plaintiff specifically asserted that the district, by permitting the Boy Scouts to have access to district schools, \\\"sponsors, financially supports or is actively involved with religious activities.\\\" As part of her allegations seeking declaratory and injunctive relief, plaintiff asserted that the district, if not enjoined, will continue to spend taxpayer monies and resources in violation of the Oregon Constitution to the \\\"irreparable injury of all Multnomah County taxpayers.\\\" Finally, in both her petition for review and her claims for civil relief, plaintiff sought attorney fees based on, inter alia, her assertion that she was acting as a \\\"private attorney general to vindicate the public's interest!.]\\\"\\nIf plaintiff continued to be the mother of a student at a school in which the Boy Scouts takes advantage of the district's policy of community access, issues of standing and mootness would not detain us. Parents have a well-recognized and, in fact, federally protected interest in directing and controlling the religious training of their children. See Wisconsin v. Yoder, 406 US 205, 213-14, 92 S Ct 1526, 32 L Ed 2d 15 (1992). As a consequence, the fact that school children are subjected to unwelcome religious exercises or forced to assume special burdens to avoid them readily establishes an interest sufficient to give parents standing to raise challenges to school activities and policies on establishment of religion grounds. See, e.g., Abington School Dist. v. Schempp, 374 US 203, 225 n 9, 83 S Ct 1560, 10 L Ed 2d 844 (1963); accord Valley Forge College v. Americans United, 454 US 464, 487, n 22, 102 S Ct 752, 70 L Ed 2d 700 (1982).\\nThe problem here, however, is that plaintiffs status has changed. In response to our inquiry, the parties have advised us that, in September 2001, plaintiff transferred her son to another school in the district, one in which the Boy Scouts has not engaged in membership activities. Because standing is a component of justiciability, which in turn is jurisdictional, we must begin with a determination of whether plaintiffs son's change of status moots her'interests as a parent or whether her status as taxpayer is sufficient to give her standing in all events.\\nA. Standing to Seek Judicial Review of the Superintendent's Order\\nPlaintiffs standing to seek review of the superintendent's order presents a somewhat different question than does her standing to bring a civil action against the district for declaratory and injunctive relief. The legislature, in . enacting ORS 327.109, made an explicit policy choice to provide a process by which a complaint can be made to the superintendent alleging that a school district \\\"sponsors, financially supports or is actively involved with religious activity.\\\" As we describe at greater length later in this opinion, see 185 Or App at 359-60, ORS 327.109 codifies federal principles prohibiting the government from establishing religion. The federal Establishment Clause is self-executing in the sense that a person with a sufficient interest may invoke a court's general jurisdiction through a declaratory or other civil action to enforce it. ORS 327.109, however, represents a deliberate legislative choice to provide for enforcement of the prohibition through a singular and specific means \\u2014 i.e., the withdrawal of state funding to school districts. In determining who could bring such a complaint to the superintendent, the legislature expressly declared that \\\"a citizen of Oregon\\\" may do so. ORS 327.109(1). The citizen may then seek judicial review of the superintendent's order, either as a person aggrieved by it, or as a party to a proceeding before the superintendent, if the superintendent holds a contested case hearing on the complaint. See ORS 327.109(2); ORS 183.482.\\nThe question that logically follows is: Can the legislature constitutionally extend standing in this context to \\\"any citizen of Oregon?\\\" In our recent divided en banc decision in Utsey, a majority of the court held that the Oregon Constitution limits the legislature's ability to confer standing on persons to seek judicial review of executive or administrative action. More specifically, the majority held that, regardless of the legislature's provision of standing to obtain judicial relief, constitutional requirements of justiciability require that (1) the interests of the parties to a judicial action be adverse, and (2) that a court's decision have some practical effect on the rights of the parties to the controversy. Utsey, 176 Or App at 540-50. The majority concluded that those requirements were not satisfied by the legislative scheme for judicial review of local land use decisions. Under that scheme, any person who participated in any local land use proceeding could seek judicial review of that decision. There were no legal limits on who could participate at the local level and no requirement that a participant, in seeking judicial review of the decision, demonstrate that the decision will have any legal effect on the person seeking review. Id. at 549-51. The majority concluded, therefore, that the statutes effectively conferred on litigants \\\"the right to obtain an advisory opinion, which is beyond the authority of the legislature to grant\\\" and that the petitioner in Utsey had not demonstrated any interest beyond a desire for such an advisory opinion. Id. at 550. As Judge Edmonds emphasized in a concurring opinion:\\n\\\"The vice of the statute is in its breadth \\u2014 it has no mechanism, like the 'aggrievement' requirement of ORS 183.480(1), by which it limits the right of judicial review to those parties who have a personal stake in the outcome of the proceeding.\\\"\\nId. at 561 (Edmonds, J., concurring).\\nJudicial review of the superintendent's order under ORS 327.109 differs from review of the land use decision in Utsey in two significant regards. First, here, because the superintendent declined to hold a hearing on plaintiffs complaint, plaintiff could seek judicial review of the superintendent's order in circuit court only as an \\\"adversely affected or aggrieved\\\" person within the meaning of ORS 183.480(1). Second, under ORS 327.109, the legislature has expressly-prescribed a qualification for a person filing a complaint with the superintendent \\u2014 the person must be a citizen of Oregon. The record in this case differs from Utsey as well. In her complaint, plaintiff has alleged not only that she is a citizen but also that she is adversely affected or aggrieved by the district's policy in her capacity as a state and local taxpayer. Thus, the proper question here is not whether the legislature has somehow unconstitutionally enlarged the judicial power of this state by enacting ORS 327.109. Rather, the proper question is whether plaintiff has satisfied the statutory standard set out in ORS 183.480(1) and, if she has, whether her petition for review and complaint present the court with a constitutionally justiciable controversy.\\nIn other contexts, neither citizen nor citizen-taxpayer status might be enough to demonstrate that a court's ruling will have an effect on a litigant's interests. In this particular context, however, it is. Establishment Clause principles are uniquely concerned with the use of government funds and resources. As a result, federal courts recognize that even generalized federal taxpayer standing, which ordinarily is not a sufficient interest to challenge governmental conduct on constitutional grounds, provides a sufficient injury-in-fact to a taxpayer such that a taxpayer may pursue an Establishment Clause-based challenge to an action that involves the appropriation of government funding.\\nTo be sure, the standing determinations of federal courts in Establishment Clause cases are not binding on us. Nevertheless, the logic underlying those determinations persuades us that, whatever the constitutional adequacy of generalized citizen or citizen-taxpayer status in other contexts, a citizen-taxpayer of Oregon has standing to seek judicial review of the superintendent's rejection of a complaint under ORS 327.109. Constitutional prohibitions on government establishment of religion are distinctly, and perhaps even uniquely, concerned with the use to which government puts its money and its resources. If anything, the Oregon Constitution expresses an even greater textual commitment to that concern than does its federal counterpart. Were plaintiffs complaint to the superintendent ultimately determined to have merit, she would achieve two outcomes. First, she would prevent the use of state funds for a purpose specifically and expressly prohibited by the constitution. Second, state funding to the district would be cut off until the unconstitutional conduct stopped. Significantly, that state funding would revert to the State School Fund, where it would then be used to benefit public schools elsewhere throughout the state. In that sense, a successful complaint to the superintendent not only furthers Establishment Clause values regarding the use of government money and resources, but it provides a tangible savings and recoupment of that money for the use of the public school system generally. We therefore conclude that, in this context, plaintiffs allegations of her interests as a citizen-taxpayer gave her standing to seek judicial review of the superintendent's order. See generally McIntire v. Forbes, 322 Or 426, 432-33, 909 P2d 846 (1996).\\nB. Standing to Seek Declaratory and Injunctive Relief Against the District\\nOur discussion of plaintiffs standing as a citizen-taxpayer for purposes of her complaint to the superintendent applies with equal force to her claim for declaratory and injunctive relief. Because Establishment Clause principles are uniquely concerned with the use of government money and resources, we hold that general citizen-taxpayer status provides a sufficiently concrete interest to satisfy constitutional justiciability requirements where the citizen-taxpayer seeks to stop the use of government money and resources to sponsor, financially support, or otherwise unconstitutionally aid religious activity. See generally Bowen v. Kendrick, 487 US 589, 619-20, 108 S Ct 2562, 101 L Ed 2d 520 (1988); see also 185 Or App at 351 n 21.\\nPlaintiffs status as the mother of a student in a school in the district also gives her standing to bring her claim for declaratory and injunctive relief. Granted, her son no longer attends a school in which the Boy Scouts engages in membership activities. But neither the district's policies nor the Boy Scouts' ability to pursue school membership activities pursuant to those policies at any school in the district have changed. The Boy Scouts' voluntary limitation of its activities, without more, does not render moot plaintiffs challenge to the district's policies. See Tanner v. OHSU, 157 Or App 502, 510, 971 P3d 435 (1998) (\\\"The voluntary cessation of a practice that is challenged in an action for declaratory and injunctive relief does not, in itself, render an action moot[.]\\\"). Moreover, as long as the district's policies remain in place, and as long as the Boy Scouts remains active in other schools within the district, plaintiff is confronted with a classic Hobson's choice: she must either subject her child to unwelcome and allegedly unconstitutional religious activity or she must restrict her choice of schools for her son to those in which the Boy Scouts declines to recruit. If she does the latter, she must \\\"assume the special burden to avoid\\\" the interference with her right to raise her son free of religious interference with which she disagrees. See Schempp, 374 US at 224 n 9. Either choice provides her with a concrete stake in the litigation such that, if her claim has merit, a judicial resolution will have a practical effect on her rights and interests.\\nFinally, one additional interest gives plaintiff standing to pursue her claim for declaratory and injunctive relief, but it is an interest that depends on our conclusion that she has standing under ORS 327.109. If, as we have concluded, she has a sufficient interest to seek judicial review of the superintendent's resolution of her complaint under that statute, then, as the mother of a student attending a district school, she has a complementary interest in also seeking declaratory and injunctive relief. That is so because her complaint, if well founded, would result in a withdrawal of state funding to the district as a whole \\u2014 not just to Harvey Scott Elementary School \\u2014 unless and until the district's policy is changed to prevent the allegedly offensive Boy Scouts' membership activities. ORS 327.109(6)(b) - (c). Such a withdrawal of funding would have an obvious detrimental effect on the education of every public school student in the district, including plaintiffs son, regardless of the district school the student attends and regardless of the Boy Scouts' voluntary restraint of its activities in some schools. Although the statute provides for funding to be reinstated as soon as the offending conduct ceases, it provides no mechanism by which the superintendent may force a district to cease that conduct. See ORS 327.109(6). Thus, plaintiffs claim for declaratory and injunctive relief would serve the salutary purpose of ensuring that the allegedly unconstitutional activities were halted as soon as they were judicially declared to be unconstitutional, which would ensure that state funds were not withdrawn from the district, which in turn would ensure that funding for every school child in the district (including plaintiffs son) was not dramatically decreased. That interest, too, is adequate to support plaintiff's standing to bring her civil action against the district. See McIntire, 322 Or at 433 (local taxpayer status provided standing to challenge a measure that would have the effect of diverting state funds from local uses to uses elsewhere in the state). Because we conclude that plaintiff has standing to pursue both judicial review of the superintendent's order and her civil claim against the district, and because a judicial decree will have a practical effect on plaintiffs interests notwithstanding her son's transfer to another district school, we turn to the merits.\\nIII. THE APPLICABLE LEGAL ANALYSIS\\nOrdinarily, we would begin with plaintiffs statutory claim and proceed to her constitutional challenge, if at all, only after resolving that statutory claim. See generally Planned Parenthood Assn. v. Dept. of Human Res., 297 Or 562, 564, 687 P2d 785 (1984) (describing first-things-first methodology). In this instance, we begin with the state constitutional analysis for two reasons. First, we must reach the constitutional analysis in all events, because plaintiffs claims for declaratory and injunctive relief are distinct and severable from her challenge to the superintendent's order under ORS 327.109. If plaintiff were to prevail under the statute, the only remedy would be a withdrawal of state funds from the district; plaintiff would not necessarily obtain the further relief that she seeks, which is an injunction preventing the district from permitting the Boy Scouts to present membership information to elementary schools students during school hours. As to plaintiffs claim for an injunctive remedy, no statute is implicated, and plaintiffs ground for seeking that remedy is constitutional only.\\nOur second reason for starting with the constitutional analysis is that, as the parties agree and we later describe, the statute on which plaintiff relies is a codification of the constitutional principle. Consequently, the analysis that applies under that statute is substantially the same as the constitutional analysis. See State v. Toevs, 327 Or 525, 534, 964 P2d 1007 (1998) (where the legislature intended to codify case law interpreting constitutional provisions, the statutory analysis is not independent of the constitutional one). Recognizing that fact, the parties' arguments are largely devoted to an analysis of whether the district's policies and practices, as pertinent to the Boy Scouts' membership activities at elementary schools, violate the Oregon Constitution. We agree with that focus and begin there.\\nA. The Constitutional Analysis\\nPlaintiffs claim against the district is premised on the theory that, by permitting the Boy Scouts to distribute membership information on school grounds, the district violates the Oregon Constitution's prohibition on governmental establishment of religion. With regard to that constitutional challenge, the focal point for the parties' debate is the legal analysis that correctly applies. Plaintiff, relying on the analytical methodology of Priest v. Pearce, 314 Or 411, 415-16, 840 P2d 65 (1992), urges us to take a fresh look at the meaning of the Oregon Constitution's potentially relevant clauses by analyzing their text, the historical circumstances that led to their creation, and the case law surrounding them. Plaintiff then offers us an extensive analysis under the Priest factors that leads, in plaintiffs view, to a particularly strict principle of separation of church and state, one that plaintiff urges would invalidate the district's policy as it extends to the Boy Scouts' activities in this case. Defendants, on the other hand, argue that the law is settled and that the test in place erects no such strict separation principle. The trial court agreed with defendants, as do we.\\nMore than 25 years ago, in Eugene Sand & Gravel v. City of Eugene, 276 Or 1007, 558 P2d 338 (1976), cert den, 434 US 876 (1977), the Oregon Supreme Court held that the appropriate test for deciding an establishment-like challenge brought under the Oregon Constitution is the so-called Lemon test, which evolved out of United States Supreme Court jurisprudence:\\n\\\"The test established by the Supreme Court of the United States for application in determining whether a law is constitutional under the First Amendment Establishment Clause is as follows: (1) the law must reflect a clearly secular legislative purpose; (2) it must have a primary effect that neither advances nor inhibits religion (as distinguished from an incidental effect); and (3) it must avoid excessive government entanglement with religion. We hold that this same test is also appropriate for application in determining whether a law is constitutional under similar provisions of the Oregon Constitution\\\"\\nId. at 1012-13 (footnotes and internal quotation marks omitted; emphasis added). See id. at 1016 (\\\"The only proper basis for deciding the validity of [laws allegedly establishing religion] is whether they satisfy the three-fold test of 'purpose,' 'primary effect' and 'entanglement.' \\\"). As that passage emphasizes, the court did not limit application of the three-part test to a single provision or clause of the Oregon Constitution. Rather, the court held the federal test to be proper for resolving any establishment claim pursued under the several clauses directed to the relationship of government and religion \\u2014 namely, Article I, section 2 (securing freedom of worship), Article I, section 3 (preserving rights of free exercise of religion and rights of conscience), and Article I, section 5 (prohibiting state expenditures of money for the benefit of religious institutions). Id. at 1016 n 6 (quoting in full those sections of the Oregon Constitution).\\nPlaintiff correctly points out that, in the years since the court decided Eugene Sand & Gravel, the Oregon Supreme Court has adopted an independent approach to state constitutional analysis, often invoking the interpretative methodology outlined in Priest as the framework for independently examining the meaning of the original provisions of the Oregon Constitution. See, e.g., Smothers v. Gresham Transfer, Inc., 332 Or 83, 90-91, 23 P3d 333 (2001). The Supreme Court also has expressed its willingness to reexamine its holdings in prior cases when the analysis in those cases failed to use the Priest interpretative methodology. See, e.g., Stranahan v. Fred Meyer, Inc., 331 Or 38, 56, 11 P3d 228 (2000). But the fact that the Supreme Court is free to revisit its own precedents on that basis does not mean that we may do so. As plaintiff recognizes, the Supreme Court has never overruled Eugene Sand & Gravel. Because it has not done so, that case remains binding on this court.\\nWe therefore reject plaintiff's invitation to disregard the holding in Eugene Sand & Gravel. In doing so, it is worth observing that, in addition to adopting the Lemon three-part test, the court in Eugene Sand & Gravel endorsed a fundamental understanding of the constitutional value that the test is designed to serve. Contrary to plaintiffs position, the Oregon Constitution does not embrace an unusually strict principle of separation of church and state. Rather, Oregon's religion clauses were intended to ensure that the state does not cross the line between neutrality toward religion and support of religion. Eugene Sand & Gravel, 276 Or at 1013. Identifying that line is a problem of degree, one that does not lend itself to bright demarcations. See id. As the court emphasized in Eugene Sand & Gravel,\\n\\\" 'there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.' \\\"\\nId. at 1014 (quoting Walz v. Tax Commission, 397 US 664, 669, 90 S Ct 1409, 25 L Ed 2d 697 (1970)). In applying the Lemon three-part test to the facts presented, therefore, we do so cognizant of the underlying constitutional value to be served.\\nB. The Statutory Analysis\\nAs earlier described, plaintiffs complaint to the superintendent was based on an alleged violation of statutory standards rather than on the Oregon Constitution. In particular, plaintiff proceeded under ORS 327.109, which permits a citizen to complain to the superintendent that a school district is one \\\"that sponsors, financially supports or is actively involved with religious activity!.]\\\" Following a preliminary investigation, the superintendent issued an order determining that there was no substantial basis to believe that the district had violated the statute. In doing so, the superintendent concluded that the statute codifies constitutional principles and that it was therefore appropriate to apply the three-part test adopted in Eugene Sand & Gravel. We agree.\\nOur analysis of the statute's meaning in this case begins and ends with text. See PGE v. Bureau of Labor and Industries, 317 Or 606, 610, 859 P2d 1143 (1993). The terms chosen by the legislature \\u2014 \\\"sponsors, financially supports or is actively involved with religious activity\\\" \\u2014 have well-recognized legal significance. See Brian v. Oregon Government Ethics Commission, 320 Or 676, 683, 891 P2d 649 (1995) (statutory words with a well-understood legal meaning are given that meaning); Gaston v. Parsons, 318 Or 247, 253, 864 P2d 1319 (1994) (same). The terms and their phrasing are taken directly from the United States Supreme Court's Establishment Clause jurisprudence:\\n\\\"[F]or the men who wrote the Religion Clauses of the First Amendment the 'establishment' of a religion connoted sponsorship, financial support, and active involvement of the sovereign in religious activity.\\\"\\nWalz, 397 US at 668. After first making that observation in Walz, the Court repeated its observation in the cases relied on in Eugene Sand & Gravel, such as Lemon v. Kurtzman, 403 US 602, 612-13, 91 S Ct 2105, 29 L Ed 2d 745 (1971), and Committee for Public Education v. Nyquist, 413 US 756, 772, 93 S Ct 2955, 37 L Ed 2d 948 (1973), as well as a host of others decided before the legislature enacted ORS 327.109. See Or Laws 1985, ch 584, \\u00a7 2. The Court's three-part test was designed, in the absence of precisely stated constitutional prohibitions, to draw lines with reference to \\\"the three main evils against which the Establishment Clause was intended to afford protection: 'sponsorship, financial support, and active involvement of the sovereign in religious activity.' \\\" Lemon, 403 US at 612-13 (quoting Walz, 397 US at 668).\\nBecause the legislature's intention to codify federal Establishment Clause principles is evident, the analysis under the statute should be substantially the same as that under the constitutional provision. Toevs, 327 Or at 534. Therefore, the three-part Lemon test adopted by the court in Eugene Sand & Gravel appropriately applies to plaintiff's complaint under ORS 327.109.\\nIV. APPLICATION OF THE LEGAL ANALYSIS TO THIS CASE\\nThe Lemon test requires us to ask three questions with regard to the district's policy of permitting the Boy Scouts to provide membership information to elementary students on school grounds: (1) Does the district's policy reflect a secular purpose? (2) Is the primary effect of that policy to advance or inhibit religion? (3) Does the administration of the policy excessively entangle the district in religion? To sustain the district's policy and practices, we must answer all three questions in the district's favor. In addressing the three prongs of the inquiry, we appropriately consider the broader framework of law that has developed around the federal analysis. Eugene Sand & Gravel, 274 Or at 1019 (court may look to decisions of other jurisdictions applying the Lemon analysis to similar facts and circumstances, which are not controlling but can be considered for their persuasive value).\\nThe district's purpose is expressly identified in its policy: to provide community groups with access to the schools that they support, for the enrichment of both the students and the community generally. The policy is a neutral one that permits access to the district's schools on the basis of neutral criteria. The Boy Scouts is but one of many groups that can avail themselves of the opportunity to distribute information about their activities to students. Other groups do the same. Plaintiff does not argue that enriching the life of the students and the community in general is anything other than a manifestly secular purpose. Nor does plaintiff attempt to impeach the district's good faith in adopting the policy. We conclude that the district's policy of permitting community access to and use of its public schools readily satisfies the secular purpose inquiry.\\nThe next question is whether the \\\"primary effect\\\" of the district's policy or practice is to advance religion. As the Supreme Court has cautioned, \\\"the proposition that the Establishment Clause prohibits any program which in some manner aids an institution with a religious affiliation has consistently been rejected.\\\" Hunt v. McNair, 413 US 734, 742, 93 S Ct 2868, 37 L Ed 2d 923 (1972). The crucial question is not whether a government policy provides some aid or benefit to religion. Rather, to be unconstitutional, the policy must have a primary effect of advancing religion. Tilton v. Richardson, 403 US 672, 679, 91 S Ct 2091, 29 L Ed 2d 790 (1971) (plurality opinion). See Dickman et al v. School Dist. No. 62C et al, 232 Or 238, 246, 366 P2d 533 (1961), cert den, 371 US 823 (1962) (The principle of separation of church and state has not been applied in such a strict form as to prohibit the government \\\"from conferring any benefit upon religious institutions , no matter how indirect it might be.\\\" (Emphasis in original.)). Whether there is such a primary effect is largely dictated by the nature of the governmental benefit and the nature of the organization benefitted:\\n\\\"Aid normally may be thought to have a primary effect of advancing religion when it flows to an institution in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission or when it funds a specifically religious activity in an otherwise substantially secular setting.\\\"\\nHunt, 413 US at 743.\\nIn this case, we are satisfied that the district's policy of community access to its schools, as that policy is implemented for the Boy Scouts, has a primarily secular effect and does not advance religion. Two factors in particular lead to that conclusion. The first is the nature of the Boy Scouts' activities in the schools, as developed in the record before us. A Boy Scouts representative addresses the students for a limited purpose: to make the organization's existence known and to tell students (and their parents, via the students) how to learn more about the organization and join it. That is all. No religious message is conveyed; religion is not so much as mentioned. The students' exposure to that limited message is brief, consisting of a five-minute announcement in the school cafeteria. Also, the students voluntarily may receive printed information (i.e., a flyer or a wristband) with meeting-place information to take home to their parents. That limited information is given to students once or, at most, twice in a full school year. Such brief, neutral activity that conveys no religious message cannot sensibly be equated with governmental advancement of religious beliefs or principles.\\nThat conclusion is reinforced by a second consideration: the neutrality and general applicability of the district's policy. The district's policy is not a special one for the Boy Scouts but, rather, is an evenhanded policy of access extended to a broad spectrum of community groups on neutral terms \\u2014 that is, on terms that have nothing to do with religion. As the Supreme Court has observed, the provision of a benefit on a neutral basis to religious and nonreligious groups alike \\\"is an important index of secular effect\\\" and confers no \\\"imprimatur\\\" of government endorsement of religion. Widmar v. Vincent, 454 US 263, 274, 102 S Ct 269, 70 L Ed 2d 440 (1981). See Westside Community Bd. of Ed. v. Mergens, 496 US 226, 252, 110 S Ct 2356, 110 L Ed 2d 191 (1990) (plurality opinion). In other words, in such a circumstance, what the government sponsors \\u2014 and is likely to be perceived as sponsoring \\u2014 is a neutral policy of access, not a religious organization or particular religious beliefs. Alone and in combination, the limited nature of the Boy Scouts' activities and the neutral and generally applicable nature of the district's policy defeat plaintiffs argument that the district's policy, insofar as it permits access by the Boy Scouts, has a primary effect of advancing religion.\\nIn arguing to the contrary, plaintiff repeatedly characterizes the Boy Scouts as \\\"a religious organization\\\" based on its requirement that a boy, to join the organization, must believe in God and take an oath to do his duty to God. Plaintiffs principal position is that, by permitting the Boy Scouts to distribute information about its membership meetings, more boys who believe in God are encouraged to join the organization, which necessarily results in advancing religion.\\nPlaintiffs argument, however, suffers from two flaws, one legal and one factual. As for the legal flaw, the fact that the district's access policy may benefit the Boy Scouts by increasing the number of boys that join the organization is, no doubt, a benefit to the organization. But such aid is not, for constitutional purposes, the equivalent of advancing religion, even in the case of a pervasively religious organization. As the Supreme Court has observed in cases involving religious schools, even financial aid channeled only to the secular functions of a religious institution may serve\\n\\\"indirectly and incidentally to promote the religious function by rendering it more likely that children [will] attend sectarian schools and by freeing the budgets of those schools for use in other nonsecular areas. But an indirect and incidental effect beneficial to religious institutions has never been thought a sufficient defect to warrant the invalidation of [such aid].\\\"\\nNyquist, 413 US at 775 (emphasis added). Plaintiffs argument here is analogous. She reasons that the religious function of the Boy Scouts will be promoted because the Boy Scouts' activities on school property render it likely that more boys will join. But as in cases involving aid to religious schools that may ensure continued or increased enrollments, any enhancement to the religious function of the organization is indirect and incidental and therefore is not constitutionally objectionable.\\nThe factual flaw in plaintiffs argument is in her characterization of the nature of the Boy Scouts as an organization. Plaintiff approaches the religious character of any group or organization as though it is an all-or-nothing proposition. In plaintiffs view, because the Boy Scouts requires a belief in God as a criterion of membership and requires scouts to take an oath to do their duty to God, the Boy Scouts is a \\\"religious organization\\\" and any aid it receives because of a governmental policy per se results in the advancement of religion. Plaintiffs argument is misguided. Regardless of the label plaintiff chooses to use, \\\"what matters is the substance of [an organization's] activities.\\\" Good News Club v. Milford Central School, 533 US 98, 112 n 4, 121 S Ct 2093, 150 L Ed 2d 151 (2001).\\nTo be sure, there is a religious component to the Boy Scouts \\u2014 that is, a scout must profess to believe in God and must take an oath to do his duty to God. In addition, a scout may choose to earn a religious emblem for his uniform by exploring his religious values. But a scout's religious beliefs \\u2014 both their strength and their substance \\u2014 are left to him and his family; any exploration of them is done individually and voluntarily. Beyond that, the record establishes that the bulk of Boy Scouts' activities is secular (i.e., recreational and social). The record provides no basis for concluding that religious teaching or indoctrination is a substantial purpose or activity of the Boy Scouts, which is a fact that \\\"reduces the risk that government aid will in fact serve to support religious activities.\\\" Tilton, 403 US at 687.\\nFinally, plaintiff emphasizes the impressionable nature of elementary school children, suggesting that they are more likely to be coerced into joining the Boy Scouts, and perhaps even to acquire a belief in God, due to the social pressures of the school environment. But the impressionability of the students is irrelevant to the analysis if the school is not engaging in conduct that advances religion. Good News Club, 533 US at 116. Here, the brief in-school presentations made by the Boy Scouts, together with the limited amount of information conveyed and the complete lack of any religious content, simply provide no basis to find that any religious impression is being made, irrespective of the impressionability of the students. As for plaintiffs concern with coercion, plaintiffs argument overlooks the role of the students' parents. The parents determine whether they and their son will attend a membership meeting and whether their son will then join the Boy Scouts. In other words, student participation in the Boy Scouts depends on parental consent. Thus, the relevant community to consider is that consisting of parents, not students. See id. at 115. Plaintiffs argument about the susceptibility of elementary school students to social pressure falls on that point as well.\\nWe turn, then, to the final prong of the Lemon test, which is whether the district's community access policy leads to excessive entanglement of government with religion. Plaintiff makes only a cursory argument on that score, asserting that entanglement results because school personnel hand out some materials and introduce speakers, and because presentations are made in school buildings. Plaintiff cites no cases in which such limited official involvement, which occurs for a few minutes once or twice in a school year, has been held to be excessive entanglement. Nor are we willing to so hold in this case.\\nThe essential point of the \\\"excessive government entanglement\\\" prong of the three-part test is to ensure that, to maintain religious neutrality, government avoids creating \\\"a kind of continuing day-to-day relationship\\\" involving it in the activities of religious institutions or organizations. Walz, 397 US at 674. Policies that require \\\"official and continuing surveillance\\\" or that otherwise \\\"encompass sustained and detailed administrative relationships for enforcement of statutory or administrative standards\\\" give rise to classic entanglement problems. Id. at 675. On the record before us, the limited forms of assistance that school personnel give to the Boy Scouts, and presumably to other community groups who enter the premises to make similar presentations, hardly rise to that intensity of governmental involvement. Moreover, the fact that the presentations by the Boy Scouts are one- or two-time events in the course of a full school year means that there is no continuing day-to-day relationship between government and a religious organization of the kind that typifies the excessive entanglement concern. See Tilton, 403 US at 688. Finally, the fact that the Boy Scouts' access to school facilities is based on a neutral policy of general application tends, in and of itself, to defeat any entanglement argument. As aptly stated in a similar challenge in another jurisdiction, \\\"[b]lanket regulations, which apply equally to religious and nonreligious groups alike, are simply not the type of government involvement that raises entanglement prong concerns.\\\" Sherman v. Consol. School Dist. 21, 8 F3d 1160, 1164 n 10 (7th Cir 1993). We agree.\\nV. CONCLUSION\\nNone of the prongs of the three-part test is satisfied in this case. Because they are not, plaintiffs constitutional claim against the district and her challenge to the superintendent's rejection of her statutory complaint fail. In reaching that conclusion, we have kept in mind the caution that the United States Supreme Court sounded in connection with the three-part Lemon test:\\n\\\"There are always risks in treating criteria discussed by the Court from time to time as 'tests' in any limiting sense of that term. Constitutional adjudication does not lend itself to the absolutes of the physical sciences or mathematics. The standards should rather be viewed as guidelines with which to identify instances in which the objectives of the Religion Clauses have been impaired.\\\"\\nTilton, 403 US at 678. Therefore, in addition to applying the three-part test as Eugene Sand & Gravel requires, we have retained sight of the constitutional objectives that it serves. In that regard, this observation, made by the Oregon Supreme Court about the enduring principle reflected in religion clauses of the federal and state constitutions alike, is particularly apt:\\n\\\"It is to be expected that in the operation of the state residual benefits will accrue to the various religious groups, not because they are religious organizations but because they are, like other organizations, a part of the community which the state will, and must, serve indiscriminately. As Mr. Justice Black observed in Everson [v. Board of Education, 330 US 1, 18, 67 S Ct 504, 91 L Ed 711 (1946)] , the First Amendment (and its counterpart in state constitutions) 'requires the state to be neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions than it is to favor them.' \\\"\\nDickman, 232 Or at 255-56 (citation omitted). In this case, we are satisfied that the test, as we and the circuit court have applied it, has served the constitutional objective well.\\nAffirmed.\\nThe order was issued by then-Superintendent Norma Paulus. While this case was pending in circuit court, she was succeeded in office by Superintendent Stan Bunn, who was substituted as the defendant in the judicial review proceeding. Because of that substitution, we refer to the superintendent's actions as though they were those of Superintendent Bunn.\\nORS 327.109 provides, in part:\\n\\\"(1) Upon receipt from a citizen of Oregon of a complaint that on its face is colorable that a school district is a district that sponsors, financially supports or is actively involved with religious activity, the Superintendent of Public Instruction or the superintendent's designated representative shall undertake promptly a preliminary investigation of the facts alleged in the complaint.\\n\\\"(2) If, after the preliminary investigation, the superintendent finds that there is a substantial basis to believe that the school district sponsors, financially supports or is actively involved with religious activity, the superintendent shall:\\n\\\"(a) In the case of a school district:\\n\\\"(A) Notify the complainant and the school district;\\n\\\"(B) Withhold immediately all funds due the school district under ORS 327.095; and\\n\\\"(C) Schedule a contested case hearing to be conducted in accordance with ORS 183.413 to 183.470.\\n\\\"\\n\\\"(3)(a) In the case of a school district if, after the preliminary investigation, the superintendent finds that there is no substantial basis to believe that the school district is a district that sponsors, financially supports or is actively involved with religious activity, the superintendent shall notify the complainant and the district of that finding and shall not withhold funds due the district under ORS 327.095 or schedule a hearing.\\\"\\nORS 183.500 provides that an appeal of a circuit court judgment following judicial review of a noncontested case order \\\"shall be taken in the manner provided by law for appeals from the circuit court in suits in equity.\\\" The reference to equitable proceedings is an anachronistic holdover from earlier provisions of the administrative review statutes. Oregon Env. Council v. Oregon State Bd. of Ed., 307 Or 30, 38, 761 P2d 1322 (1988). As we have observed in other cases, the practical import of that standard as it bears on our review is not altogether clear. See, e.g.,Portello v. Oregon State System of Higher Education, 122 Or App 314, 318 n 1, 858 P2d 145, rev den, 318 Or 170 (1993).\\nIn implicit recognition of that reality, the parties effectively have ignored the usual summary judgment standard of review insofar as the superintendent's order is concerned and have cited the standard of review articulated in United Citizens, 104 Or App at 54.\\nWe qualify that observation slightly. Plaintiff includes in her arguments a passing challenge to the superintendent's factual findings, arguing that some of them are not supported by substantial evidence because the superintendent inadequately investigated plaintiffs complaint. The legal basis for the argument is inadequately developed. In all events, we agree with the superintendent that the proper question is whether the record would permit a reasonable person to make the factual findings that the superintendent made. See ORS 183.484(5)(c). Plaintiff does not argue that any of the superintendent's findings is unsupported under that standard.\\nThe manner in which the record was developed by the parties and considered by the circuit court is consistent with Norden v. Water Resources Dept., 329 Or 641, 996 P2d 958 (2000). In that case, the Supreme Court held that judicial review of an order in other than a contested case, as provided for by ORS \\u00cd83.484, is a record-making proceeding. Norden, 329 Or at 646-49. A party challenging the order therefore may present evidence that detracts from the agency's order and the agency, conversely, may present evidence bolstering its order. Id. To the extent that a plaintiff does not seek to challenge any or all of the findings of fact and no further record is developed as to those findings, the administrative findings of fact become the \\\"facts\\\" for purposes of the circuit court's review, as well as our own. See Lee v. Appraiser Certification and Licensure Board, 160 Or App 622, 624, 981 P2d 825 (1999) (unchallenged administrative findings are binding on judicial review).\\nDistrict Policy 3.30.020 provides, in part:\\n\\\"LIMITATION ON USE OF FACILITIES AND GROUNDS \\u2014 ALL GROUPS OR INDIVIDUALS. The special requirements of the educational setting, school programs, and the welfare and safety of personnel compel judicious utilization of school facilities and school grounds, especially during school hours. Accordingly, special policies and regulations, as outlined below, shall obtain for the use of school buildings and grounds. However, since the school buildings and grounds of the District have been established, maintained, and are operated by funds largely provided by local taxes, the Board of Education intends that these facilities shall be used to the extent possible for the enrichment of the life of the community. School buildings shall be available to responsible school and nonschool organizations, associations, and individuals of the community within requirements of the District's programs of education and with consideration for the general welfare of the students and the School District, as outlined below.\\\"\\nThe district's policies frequently refer to the statewide policies that evidently have been promulgated by the Oregon State Board of Education. None of the parties, however, has cited or relied on the board's policies. We therefore have not examined them.\\nSee District Policy 3.30.020.\\nSee generally District Policy 3.30.010 (pertaining to charges and waiver of charges for use of and access to school facilities).\\nSee generally District Policy 3.30.020 (1) - (13).\\nDistrict Policy 3.30.020 (11)(c).\\nAlso in September 1996, Boy Scouts representatives were allowed to set up an information table at the school during a parents' night open house. Plaintiff does not focus on activities involving parents nor appear to challenge or seek to enjoin that aspect of the Boy Scouts' access.\\nThe record reflects that the school staff member did this on her own initiative to help the boys sitting near her, because the wristbands cannot be attached without someone else's assistance. She did not do it because she was asked by the Boy Scouts representatives to help or because school policy required (or even expressly allowed) her assistance.\\nThe requirement that members have a belief in God is consistent with, but not expressly mandated by, the Bylaws of the Boy Scouts of America, which contains a Declaration of Religious Principle that states, in part, \\\" [Recognition of God as the ruling and leading power in the universe and the grateful acknowledgment of His favors and blessings is necessary to the best type of citizenship\\nWolf Cub Scout Book, published by Boy Scouts of America at 4-5 of the Parent Guide section (1998 printing).\\nThrough the Religious Emblems Program, a scout can explore his religious values through his parents and the family's church, religious organization, or religious fellowship to earn an emblem (badge) symbolizing his religion for his uniform. The program is voluntary. Fifteen different emblems are illustrated in the Cub Scout handbook, including emblems for Buddhist, Jewish, Meher Baba, Islamic, Protestant, Baha'i, Eastern Orthodox, Hindu, Roman Catholic, and Quaker faiths. Wolf Cub Scout Book at 95.\\nIn the circuit court, the district challenged plaintiffs standing to bring her claim for declaratory and injunctive relief, asserting that plaintiffs status as a state and local taxpayer was an insufficient interest to support her claim. The district disregarded plaintiffs allegations that she was the mother of a child attending a school in which the Boy Scouts engage in membership activities. On appeal, the district renews its taxpayer standing challenge, continuing to disregard plaintiffs allegations that she is the mother of a student in a district school.\\nOral argument in this case occurred after the transfer, hut no party brought that change of circumstance to our attention until we recently asked the parties about plaintiffs son's current school status. The superintendent and plaintiff contend that the case is not mooted by that fact. The district simply contends, without any analysis, that the case \\\"may\\\" be moot in light of that change of circumstance.\\nAlthough ORS 183.480(1) also provides that \\\"any party to an agency proceeding is entitled to judicial review of a final order,\\\" that provision has no application here. After a preliminary investigation, the superintendent found no substantial support for plaintiffs complaint that the district was sponsoring, financially supporting, or actively involved with religious activity. As a result, no hearing was held. Plaintiff never became a party to a proceeding before the superintendent. See ORS 183.310(6) (defining \\\"party\\\" as used in ORS 183.310 to 183.550).\\nSee Flast v. Cohen, 392 US 83, 88 S Ct 1942, 20 L Ed 2d 947 (1968), as limited by Valley Forge College, 454 US at 479-80 (limiting the Flast taxpayer standing principle to establishment challenges to congressional spending and taxing authority); see also Bowen v. Kendrick, 487 US 589, 619-20, 108 S Ct 2562, 101 L Ed 2d 520 (1988) (extending exception for taxpayer standing in Establishment Clause cases to challenges to executive administration of legislative appropriation decisions); Grand Rapids School District v. Ball, 473 US 373, 380 n 5, 105 S Ct 3216, 87 L Ed 2d 267 (1985) (reaffirming principle that general state taxpayer status provides a sufficiently concrete interest to provide standing to bring Establishment Clause challenge), overruled on other grounds by Agostini v. Felton, 521 US 203, 117 S Ct 1997, 138 L Ed 2d 391 (1997).\\nIt is worth noting, moreover, that municipal taxpayer status has long sufficed in most jurisdictions to challenge local expenditures on establishment of religion grounds. See generally Doremus v. Board of Education, 342 US 429, 433-34, 72 S Ct 394, 96 L Ed 475 (1952); Massachusetts v. Mellon, 262 US 447, 486, 43 S Ct 597, 67 LEd 1078 (1923).\\nCompare Or Const, Art I, \\u00a7 5 (\\\"No money shall be drawn from the Treasury for the benefit of any religeous (sic), or theological institution .\\\"), with US Const, Amend I (\\\"Congress shall make no law respecting an establishment of religion .\\\").\\nThe withdrawn funds revert to the General Fund only if the biennium in which the funds were appropriated has ended. ORS 327.109(6)(b).\\nThe history of the statute's enactment reinforces our conclusion. The statute was enacted in response to activities in Wasco County School District 50J (also known as Rajneesh School District), where school children were extensively engaged in a Schools Without Walls program that required them to perform work directly for or for the benefit of Rajneesh religious organizations. The Attorney General advised the superintendent that, if the superintendent found a constitutional violation as a result of that activity, state funding to the district should be stopped. No explicit procedure for halting the funding or permitting the district a hearing on the matter existed, and the statute was enacted in response to that void. See generally Minutes and Exhibits, House Education Committee, HB 2568, May 3, 1985. In a circumstance \\u2014 perceived or real \\u2014 in which every student, parent, teacher, administrator, and taxpayer of a particular school district were to support the religious activities of a school, the legislature's grant of standing on a citizen-taxpayer basis would provide a crucial means of bringing the violation to the attention of state officials and the courts so that finite state school resources and funds would be spared from unconstitutional expenditure.\\nTo be sure, a withdrawal of state funds from the district almost certainly would result in the district's exclusion of the Boy Scouts from its access policy in order to restore funding. That would be a practical consequence of successful litigation, however, not relief to which plaintiff would be entitled as a matter of right.\\nAt trial, plaintiff moved to amend her complaint to add her son as a plaintiff and also to add a claim that the district's practices violated her and her son's free exercise rights. Plaintiff on appeal assigns error to the denial of that motion, arguing that the trial court abused its discretion by not permitting her to add her son as a party in response to the district's challenge to her standing. That is not an issue we need to reach, given our resolution of the standing and mootness issues. We do not understand plaintiff to renew her argument on appeal that she should have been permitted to amend her complaint to add an entirely new constitutional claim. Even if plaintiffs argument encompasses that point, however, we reject it without further discussion. See Edwards v. Lewis, 76 Or App 94, 96, 98, 707 P2d 1298 (1985), rev den, 300 Or 477 (1986) (not error to deny motion to amend complaint that would add additional claim at summaryjudgment stage of proceedings); see also Mobley v. Manheim Services Corp., 133 Or App 89, 95-96, 889 P2d 1342, rev den, 321 Or 47 (1995) (similar); Humbert Excavating, Inc. v. City of Pendleton, 118 Or App 137, 143, 846 P2d 441, adh'd to as modified on recons, 120 Or App 431, 852 P2d 932 (1993) (similar).\\nThe court cited Committee for Public Education v. Nyquist, 413 US 756, 773, 93 S Ct 2955, 37 L Ed 2d 948 (1973), Lemon v. Kurtzman, 403 US 602, 612-13, 91S Ct 2105, 29 L Ed 2d 745 (1971), and Schempp, 374 US at 222, as the sources for the federal test it adopted. See Eugene Sand & Gravel, 276 Or at 1016 n 5. Since then, the test has come to be most closely associated with Lemon v. Kurtzman and is commonly referred to as the \\\"Lemon\\\" test.\\nPlaintiff grounds her argument on appeal in Article I, sections 2 and 3, as well as in Article I, section 5. Defendants urge that her reliance on sections 2 and 3 is unpreserved and that, in all events, she makes only an establishment argument, which correctly arises only under Article I, section 5. That disagreement between the parties does not matter to the analysis. Perhaps recognizing that the Oregon Constitution contains no explicit creedal preference or Establishment Clause parallel to that in the federal constitution, the court in Eugene Sand & Gravel held the Lemon test to apply based on the nature of the claim asserted, not the particular clause cited as a source the claim. 276 Or at 1012-13, 1016 n 6. Here, despite plaintiffs attempt to expand the constitutional sources of her claim, the substance of that claim remains the same \\u2014 that is, her claim is that permitting the Boy Scouts to enter school grounds to encourage membership in their organization constitutes governmental establishment of religion.\\nOn appeal, the superintendent begins the analysis by examining whether the terms are exact, inexact, or delegative in nature. See Coast Security Mortgage Corp. v. Real Estate Agency, 331 Or 348, 353, 15 P3d 29 (2000) (citing Springfield Education Assn. v. School Dist., 290 Or 217, 223, 621 P2d 547 (1980)). That inquiry is inapplicable here, however, because the superintendent has no statutorily assigned role in interpreting or promulgating rules for the enforcement of ORS 327.109. That is the province of the Board of Education. ORS 327.125. The board has not found it necessary to adopt any rules in that regard. Thus, the superintendent, in attempting to determine the statute's meaning and apply it, is in a position identical to that of a court interpreting the statute.\\nThe statute was enacted in 1985. See Or Laws 1985, ch 584, \\u00a7 2. In addition to Lemon and Nyquist, other cases decided by then that repeated the key phrasing include Grand Rapids School District v. Ball, 473 US 373, 381, 105 S Ct 3216, 87 L Ed 2d 267 (1985); Trans World Airlines, Inc. v. Hardison, 432 US 63, 90-91 n 4, 97 S Ct 2264, 53 L Ed 2d 113 (1977); Meek v. Pittenger, 421 US 349, 359, 95 S Ct 1753, 44 L Ed 2d 217 (1975); Wisconsin v. Yoder, 406 US 205, 234-35 n 22, 92 S Ct 1526, 32 L Ed 2d 15 (1972); and Tilton v. Richardson, 403 US 672, 677, 91 S Ct 2091, 29 LEd 2d 790 (1971).\\nPlaintiff, we note, does not really argue to the contrary. She agrees that the statute was intended to embody the then-prevailing state and federal constitutional standards for an Establishment Clause violation. She reasons, however, that because the Oregon constitutional analysis should be changed in light of the interpretative methodology in Priest, the statute's meaning should follow that change. We need not further consider plaintiffs argument in that regard, given our determination that Eugene Sand & Gravel remains binding.\\nIndeed, according to the record in this case, neither school officials, nor teachers, nor parents understood from their general perceptions of the Boy Scouts or the organization's school activities that the Boy Scouts had any religious component whatsoever. They became aware of that fact only after plaintiff investigated the Boy Scouts' membership policies for atheists and, later, formally complained to district officials.\\nFor her characterization of the Boy Scouts as a \\\"religious organization,\\\" plaintiff also relies on the fact that, in prior litigation in other jurisdictions over speech and associational rights, the Boy Scouts has characterized itself as a religious organization. But such self-labeling, especially when it occurs in other litigation involving other constitutional interests, is not dispositive. This case calls on us to decide whether the district's policy of permitting the Boy Scouts' activities on school premises is unconstitutional based on what those activities are as established by our record and as analyzed under the three-part Lemon test. See Eugene Sand & Gravel, 276 Or at 1024 (prior determination that religious symbol violated establishment principles not binding; determination must be made at the present time based on the existing circumstances).\\nWe note, as other courts have, that a greater entanglement problem would likely be presented were plaintiff to prevail in this regard, for it would require the district to monitor the off-school-premises activities of all community service groups for any religious component. See Rosenberger v. Univ. of Virginia, 515 US 819, 844-45, 115 S Ct 2510, 132 L Ed 2d 700 (1995); Widmar, 454 US at 272 n 11.\"}"
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