Colby v. Larson

• Jurisdiction: Oregon
• Parties: Raymond D. COLBY, Appellant, v. Percy N. LARSON, Respondent.
• Citation: 297 P.2d 1073,208 Or. 121
• Court: Oregon Supreme Court
• Decision Date: 18 July 1956

Page 1073

297 P.2d 1073

208 Or. 121

Raymond D. COLBY, Appellant, v.Percy N. LARSON, Respondent.

Supreme Court of Oregon.

Argued and Submitted at Pendleton May 8, 1956.

Decided June 6, 1956.

Rehearing Denied July 18, 1956.

See 299 P.2d 1076.

James L. Hannam, Portland, argued the cause for appellant.On the brief were Yunker, Fewless & Hannam, Portland.

Roger L. Dick, The Dalles, argued the cause for respondent.On the brief were Dick & Dick, The Dalles.

Before WARNER, C. J., and TOOZE, LUSK, BRAND and PERRY, JJ.

LUSK, Justice.

This is an appeal from an order sustaining objections to plaintiff's cost bill.

Plaintiff sued to recover $372.59 damages to his automobile caused by the negligent operation of an automobile by the defendant.He alleged in his complaint:

'That more than ten days prior to filing this action, plaintiff made written demand on the defendant for the damages sustained by plaintiff; but defendant has refused and failed to reimburse plaintiff for said damages; plaintiff, therefore, alleges $300.00 as a reasonable attorneys fee to be allowed plaintiff herein.'

The defendant by his answer admitted his liability in the full amount of damages sued for, but denied plaintiff's right to recover an attorney's fee, and in that regard alleged:

'* * * defendant has tendered with this answer and has deposited with the County Clerk of the State of Oregon for Wasco County and the Clerk of the above entitled Court said sum of $372.59 for the benefit of the plaintiff to be delivered to the plaintiff in full satisfaction of said judgment.'

The defendant also denied the allegation of the complaint that plaintiff had made written demand for payment of his damages ten days prior to commencement of the action.

The court, by its judgment, ordered the clerk to pay to the plaintiff the moneys paid into court by the defendant, declared the cause to be 'moot,' and expressly disallowed plaintiff's claim for an attorney's fee.Thereafter plaintiff filed a statement of his costs and disbursements, including an attorney's fee in the amount of $250.Defendant filed objections to the cost bill, and a hearing was had in accordance with the procedure prescribed in ORS 20.210 and 20.220.SeePerkins v. Perkins, 72 Or. 302, 308-311, 143 P. 995.At the hearing the plaintiff offered to prove that more than ten days before the commencement of the action he had made written demand on the defendant for the payment of $372.59 damages sustained in the accident in question.The defendant objected to the offer of proof and the court sustained the objection.It is not contended that the defendant at any time prior to the commencement of the action tendered any amount to the plaintiff.At the conclusion of the hearing the court made and entered an order by which it 'rejected and denied' each and every item of the cost bill.It is from this order that the appeal is taken.

The question whether plaintiff is entitled to recover his costs, and as a part thereof a reasonable attorney's fee, depends on whether the case is governed by ORS 20.080, which reads:

'In any action for damages for an injury or wrong to the person or property, or both, of another where the amount recovered is $500 or less, there shall be taxed and allowed to the plaintiff, as a part of the costs of the action, a reasonable amount to be fixed by the court as attorney's fees for the prosecution of the action, if the court finds that written demand for the payment of such claim was made on the defendant not less than 10 days before the commencement of the action; provided, that no attorney fees shall be allowed to the plaintiff if the court finds that the defendant tendered to the plaintiff, prior to the commencement of the action, an amount not less than the damages awarded to the plaintiff.'

As stated, defendant in his answer offered to allow judgment to be taken against him for the amount prayed for in the complaint, and he contends that he, and not the plaintiff, is entitled to recover costs because of the provisions of ORS 17.055, which reads:

'The defendant may, at any time before trial, serve upon the plaintiff an offer to allow judgment or decree to be given against him for the sum, or the property, or to the effect therein specified.If the plaintiff accepts the offer, he shall by himself or attorney indorse such acceptance thereon, and file the same with the clerk before trial, and within three days from the time it was served upon him; and thereupon judgment or decree shall be given accordingly, as in case of a confession.If the offer is not accepted and filed within the time prescribed, it shall be deemed withdrawn, and shall not be given in evidence on the trial; and if the plaintiff fails to obtain a more favorable judgment or decree, he shall not recover costs, but the defendant shall recover of him costs and disbursements from the time of the service of the offer.'

There is an apparent conflict between the two sections.The plaintiff, under 20.080, is...