Bliss v. Southern Pac. Co

• Decision Date: 05 February 1958
• Citation: 321 P.2d 324,212 Or. 634
• Parties: Bern O. BLISS, Appellant, v. SOUTHERN PACIFIC COMPANY, a corporation, Louis P. Hopkins, F. C. Nelson, Lee H. Frederick, Trask Lumber Company, a corporation, and O. H. Hill, Respondents.
• Court: Oregon Supreme Court

Page 324

321 P.2d 324

212 Or. 634

Bern O. BLISS, Appellant, v. SOUTHERN PACIFIC COMPANY, a corporation, Louis P. Hopkins F. C. Nelson, Lee H. Frederick, Trask Lumber Company, a corporation, and O. H. Hill Respondents.

Supreme Court of Oregon, Department 2.

Argued and Submitted Dec. 4, 1957.

Decided Feb. 5, 1958.

George P. Winslow, Tillamook, argued the cause for appellant. On the brief were Winslow & Winslow, Tillamook.

Edwin L. Graham, Portland, and D. E. Kaufman, Tillamook, argued the cause for respondents. With them on the brief were Koerner, Young, McColloch & Dezendorf, Portland, and McMinimee & Kaufman, Tillamook.

Before LUSK, P. J., and WARNER and KESTER, JJ.

WARNER, Justice.

This is an appeal in action for damages sounding in tort, wherein Bern O. Bliss is plaintiff and the Southern Pacific Company, a corporation, Louis P. Hopkins, Lee H. Frederick, F. C. Nelson, Trask Lumber Company, a corporation, and O. H. Hill are defendants. From an order dismissing the amended complaint, plaintiff appeals.

The defendants Hopkins, Frederick and Nelson are officials of the defendant railway corporation and the defendant Hill is an officer of the defendant lumber corporation.

The instant orders from which the appeal is taken were preceded by an order sustaining the defendants' demurrers to plaintiff's first complaint on the ground that it did not state sufficient facts to constitute a cause of action. Plaintiff then filed an amended complaint (hereinafter referred to as the complaint) which was followed by a motion to strike it from the files for the reason that the last complaint was substantially the same as the original complaint to which the defendants had successfully demurred. The order striking the complaint granted plaintiff ten days in which to further plead, but when the plaintiff in open court waived this privilege, the court then and on the same day entered a further order dismissing the action. The court's action in allowing the motion to strike and dismissing the complaint are the orders occasioning the appeal. We will, therefore, first treat the matter as if the motion to strike was a demurrer testing the sufficiency of the amended complaint.

Plaintiff is a manufacturer and shipper of lumber products. In April, 1947, he leased from the defendant railroad a tract of land adjacent to the railroad company's tracks in Tillamook County for use as a loading dock to facilitate the shipping of his products via the defendant's railroad. The lease was limited to periods of one year for an annual rental of $30, payable in advance. According to the complaint, the lease had been extended from year to year until it was terminated on July 1, 1953.

The plaintiff summarily defines the character and purpose of the action as one derived from an unlawful conspiracy entered into by the defendants to bring about a termination of the lease in order to enable the defendant lumber company to obtain the leased premises, together with the loading dock and other improvements placed thereon by plaintiff, but without any compensation to plaintiff. He further avers that as a result of the asserted conspiracy, plaintiff's lease was terminated and he lost said property, which he alleges as of $19,800 in value.

Custom and Usage

In order to get the vital provisions of the lease agreement in proper focus, at the outset we take note that paragraph VI of the complaint pleads the right of the railroad company to terminate said lease, as follows:

'That the defendant, Southern Pacific Company, during all the times herein mentioned, had entered into numerous similar leases with customers and shippers and it was the established and usual practice and custom of the Southern Pacific Company not to terminate said lease without cause and to extend and renew all of said lease agreements as long as the lessee paid the annual rental and otherwise complied with the terms of said lease; that it was provided in said lease that plaintiff should not underlease or sub-let said leased premises, or any part thereof, or assign said lease, or any interest therein, without the written consent of the defendant, Southern Pacific Company, and further, that said premises should be used by plaintiff solely and exclusively for construction, maintenance, and operation of lumber loading platform.

'That it was provided in said lease:

"If lessee shall make default with respect to any covenant, agreement or stipulation upon lessee's part herein contained, Railroad Company may at its option forthwith terminate this lease * * *.'

'It was further provided in said lease:

"Notwithstanding anything hereinbefore contained, it is nevertheless understood and agreed between the parties hereto that Railroad Company may at any time during the term aforesaid, or extension thereof, or holding over hereunder, terminate this lease and the tenancy of Lessee of the premises aforesaid by thirty (30) days' notice in writing, and upon payment or tender to said Lessee of such a porportion of any rent which may have been paid in advance for the then current year as would otherwise have been applicable to the remainder of such current year next succeeding the termination of said tenancy by the notice herein provided for. Acceptance of the rental in advance by the Railroad Company shall not act as a waiver of its right to terminate this lease as herein provided."

By so pleading custom and usage, it is evident that the appellant is attempting to create a new right in himself and a corresponding duty in the railroad company and as a needed prop to the theory upon which his cause rests. This allegation of custom and usage standing alone might be sufficient to raise an inference of such right and duty, but when the appellant in the same paragraph having alleged the foregoing haec verba quotations from the lease which gave the railroad a clear and absolute right to terminate the lease on thirty days' notice, what might otherwise be the value of pleading custom and usage is utterly destroyed and can avail the appellant nothing on this appeal.

The rule is well settled that when a custom or usage is inconsistent with the plain and unambiguous terms of a contract, it cannot be interposed to contradict or qualify its provisions, for in such a case, as here, the terms of the contract are evidence of the intentions of the parties to avoid the effect of such usage or custom. 'It is sufficient ground for rejecting the custom that it is excluded by necessary implication.' Port Investment Co. v. Oregon Mutual Fire Insurance Co., 163 Or. 1, 20, 21, 94 P.2d 734, 741, 124 A.L.R. 1342; Weyerhaeuser Timber Co. v. First National Bank, 150 Or. 172, 210, 38 P.2d 48, 43 P.2d 1078; Interior Warehouse Co. v. Dunn, 80 Or. 528, 534, 157 P. 806. Custom, when available to a party, is used in evidence only as a means of interpretation of a contract and not for the purpose of importing new terms into it. Barnard & Bunker v. Houser, 68 Or. 240, 243, 137 P. 227. If it were otherwise, plaintiff's claim of custom and usage would have the effect of giving him a tenancy in virtual perpetuity if sustained by prompt payment of an annual rental of $30.

Conspiracy

Conspiracy being the gravamen of plaintiff's action, we now turn our attention to the question of whether or not plaintiff's complaint states a cause of action resulting from a conspiracy between all or any of the defendants. If we find no conspiracy, we will then examine the complaint to determine if it sufficiently states any other cause of action invulnerable to demurrer.

In Pitts v. King, 141 Or. 23, 28, 15 P.2d 379, 380, 472, following 5 RCL 1060, we adopted the following as a definition for a conspiracy in a civil action:

'A conspiracy is a combination of two or more persons by some concerted action to accomplish some criminal or unlawful purpose or to accomplish some purpose not in itself criminal by unlawful means.'

Also see 15 C.J.S. Conspiracy § 35, p. 1057; 11 Am.Jur. 543, Conspiracy § 3. Obviously inherent in this definition is the axiomatic corollary that every concerted action by two or more parties is not necessarily a conspiracy.

The primary purpose of a conspiracy must be to cause injury to another. In Heitkemper v. Central Labor Council, 99 Or. 1, 25, 192 P. 765, 772, quoting with approval from 12 C.J. 584, Conspiracy § 103, we stated the proposition this way:

'So long as the object of the combination is no further its own fair interest or advantage, and not the injury of another, its members are not liable for any injury which is merely incidental.' See, also, 15 C.J.S. Conspiracy § 8, p. 1003.

Cf. Neustadt v. Employers Liability Assur. Corp., 303 Mass. 321, 21 N.E.2d 538 541, 123 A.L.R. 134; Hunter Lyon, Inc., v. Walker, 152 Fla. 61, 11 So.2d 176, 177.

Malice in civil cases does not mean merely ill will. It means the intentional doing of an injurious act without justification or excuse. Linkhart v. Savely, 190 Or. 484, 506, 227 P.2d 187; Patterson v. Skoglund, 181 Or. 167, 179, 180 P.2d 108; Jaco v. Baker, 174 Or. 191, 199, 148 P.2d 938.

In the absence of statute, conspiracy is not an independent tort, unless in a situation where mere force of numbers acting in unison or other exceptional circumstances make it a wrong. 15 C.J.S. Conspiracy § 8, p. 1001; 11 Am.Jur. 577, Conspiracy § 45. A reading of plaintiff's brief indicates that he holds to a contrary view, that is, he regards a conspiracy as a separate tort. He says at page 35 of his brief:

'It is probably true that the defendant, Southern Pacific Company, could have terminated plaintiff's agreement if it had acted alone, in good faith, without becoming in any way liable. However, when the defendant, Southern Pacific Company, entered into this conspiracy and combine, as alleged in plaintiff's amended complaint, with the other defendants to injure and destroy plaintiff's investment and property, it lost its immunity.'

This, of course, is counter to all accepted...