Cross v. Harris

• Decision Date: 18 April 1962
• Citation: 370 P.2d 703,230 Or. 398
• Parties: Truman A. CROSS, Jr., and Velma M. Cross, Respondents, v. Clarence HARRIS, Appellant, R. L. Witty, Defendant.
• Court: Oregon Supreme Court

Page 703

370 P.2d 703

230 Or. 398

Truman A. CROSS, Jr., and Velma M. Cross, Respondents, v. Clarence HARRIS, Appellant R. L. Witty, Defendant.

Supreme Court of Oregon, In Banc.

Argued and Submitted at Pendleton Oct. 30, 1961.

Decided April 18, 1962.

Ralph Currin, Pendleton, for appellant. On the brief were Currin & French.

Gene B. Conklin, Pendleton, for respondents. With him on the brief was Robert N. Funk.

Before McALLISTER, C. J., and ROSSMAN, WARNER, SLOAN, O'CONNELL, GOODWIN and LUSK, JJ.

LUSK, Justice.

This is an action in trespass to recover damages for the partial destruction of growing crops caused by airplane spraying of such crops by the defendants with a poisonous chemical and herbicide.

The plaintiffs are the owners and operators of a farm in Umatilla County, Oregon. The defendant Clarence Harris is engaged in the business of aviation spraying and the defendant R. L. Witty was his employee and the pilot of the airplane which was used in spraying plaintiffs' crops. The date of the alleged trespass was April 8, 1960.

In a jury trial the plaintiffs recovered a verdict for $7,549.10. The jury also found that the trespass was not wilful and the court entered a judgment for double the amount of damages in accordance with ORS 105.815. The defendant Harris alone has appealed. He will be hereinafter referred to as the appellant.

Error is assigned to the overruling of a demurrer to the complaint based on the failure of the plaintiffs to allege compliance with ORS 573.210 and to the denial of motions for involuntary nonsuit and a directed verdict based on the same ground. The defendants did not in their answer allege failure of the plaintiffs to comply with the statute.

ORS 573.210 reads:

'No action against a custom applicator, arising out of the use or application of any pesticide, shall be commenced unless the claimant has filed a report of the loss with the department, and mailed or personally delivered a true copy of such report of loss to the custom applicator allegedly responsible and a true copy of such report to the person for whom such work was done, within 60 days from the occurrence of such loss or within 60 days from the date when the claimant discovered that such loss had occurred. If the damage is alleged to have been caused to growing crops, the report shall be filed prior to the time when 50 percent of the crop is harvested.'

In Loe v. Lenhardt, 227 Or. 242, 362 P.2d 312, we held that this statute should be given a liberal construction in favor of the claimant. No question of pleading or burden of proof was involved in that case, though it is of interest to note that the plaintiff did not plead compliance with the statute and the question was raised by an affirmative allegation in the answer. We held that the evidence showed substantial compliance and that a directed verdict against the defendant Lenhardt, the 'custom applicator,' based on the ground of noncompliance, was erroneously ordered.

The appellant argues that the requirement of the statute is 'mandatory not directory' and, therefore, compliance with the statute is a condition precedent to the bringing of the action. We agree that the statute is mandatory in the sense that where it is properly made an issue in the case and it is shown that the plaintiff has not substantially complied with it he cannot recover. But to say that the statute is mandatory does not solve the problem. Statutes of limitation are mandatory also (see ORS 12.010), but they may be waived if not properly invoked by a pleading. Of course, there are express provisions governing the questions of pleading and proving the bar of the statute of limitations, and there are no similar provisions applicable to ORS 573.210. It becomes necessary, therefore, to examine the nature of the requirement and the decisions of the courts in analogous cases. It is first to be observed that the plaintiffs are not seeking to enforce a right created by statute, but are pursuing a common law remedy. As we said in Loe v. Lenhardt, supra:

'In the field of negligence actions against municipal corporations, where a verified claim is commonly made a condition precedent to the bringing of the action, the right to sue the governmental unit at all is a creation of the legislature and is thus clearly subject to legislative restrictions. (Citing authorities.)

No such considerations apply in this case.

'When a claim has been filed, full investigation made, and the claim rejected for some reason not connected with the form of the notice or its manner of service, the defects in the notice do not bar a meritorious action based upon a statutory right against a municipality. (Citing authorities.) A fortiori, the foregoing rule of liberal construction should apply when an attempt is made in good faith to comply with a statute which purports to limit a constitutional right to redress for injury to property caused by a private party who enjoys no special immunity.' 227 Or. at 256, 362 P.2d at 319.

The fact that this is a common law action is decisive of the question under consideration. It distinguishes this case from Sprague v. Astoria, 100 Or. 298, 195 P. 789, which was an action against a municipality to recover damages for personal injury caused by a defect in a city street. Apart from statute, the city was immune to such an action. The city charter contained a requirement that the city should not be liable in such a case unless the person claiming damages within 30 days from the time of the accident or injury filed with the auditor and police judge a statement of the claim, etc. The court held that compliance with the requirement was a condition precedent to the maintenance of the action. 100 Or. at 303, 195 P. 789. Such requirements of municipalities are sustained as valid 'in the case of claims growing out of torts on the ground that the liability of the municipality for tortious claims is only statutory in its origin and the Legislature may attach such conditions to the right to recover from the municipality for the tort as it deems proper or expedient.' Dillon, 4 Mun.Corp. (5th ed.) § 1613, quoted in Birmingham v. Weston, 233 Ala. 563, 172 So. 643, 109 A.L.R. 970, 973. A like principle is applied to the statute of limitations where a statute confers a right and expressly fixes the time within which suit to enforce the right must be brought. 34 Am.Jur. 335, Limitation of Actions § 424.

Where, however, the statutory requirement for notice of injury is made applicable to an action to enforce a common law right it is held in many cases and, we think, correctly, that the requirement is in the nature of a statute of limitation and the same rules apply, namely, that if the defect appears on the face of the complaint it must be taken advantage of by demurrer, otherwise, by answer, and that if failure to give the notice is not pleaded by the defendant it is waived.

This was the holding in Gellenbeck v. City of Mobridge, 40 S.D. 157, 166 N.W. 631. Although this was an action against a municipality to recover for an injury caused by a defective sidewalk, it was not a statutory action, but one which was recognized in South Dakota as the enforcement of a common law right. The city contended that it was entitled to a directed verdict because there was no evidence to show that the plaintiff had complied with the provisions of a statute which required notice to be given of the injury within 60 days after its occurrence, but the court held that the failure to give the notice must be pleaded and that the defendant, not having done so, was not in a position to raise the question in the trial court or on appeal. The court said:

'Where such a statutory notice does not constitute an essential element of the cause or right of action, but relates solely to the remedy, it is in the nature of a statute of limitation. Where the notice constitutes an element of the cause or right of action, as distinguished from remedy, or where it is an essential element of both right of action and remedy, it is held to be a condition precedent to the right to institute the action, in either of which cases the giving of the notice must be alleged and proven by plaintiff as a necessary part of his cause of action. The basic cause of plaintiff's cause of action in this case was common-law tort negligence, of which the giving of the notice in question formed no essential part. The negligence mentioned and comprehended in this statute in question relates and refers to common-law tort negligence for failure to observe some legal duty which the defendant city or town owed to the injured plaintiff. Where, however, the right of action itself is created by statute, and such statute requires such a notice to be given before suit, then the giving of such notice is included in and becomes a part of the right upon which the recovery is based, as the right to recovery in such cases depends upon the statute, * * *.' 40 S.D. at 161, 166 N.W. at 632.

To the same effect see Hamilton v. City of Anniston, 268 Ala. 559, 109 So.2d 728; Hawley v. City of Johnstown, 40 App.Div. 568, 58 N.Y.S. 49; Zack v. Saxonburg Borough, 386 Pa. 463, 473, 126 A.2d 753; Beane v. City of St. Joe & Inv. Co., 211 Mo.App. 200, 210, 240 S.W. 840; City of Huntsville v. Goodenrath, 13 Ala.App. 579, 585, 68 So. 676. In view of these authorities we think that it was incumbent upon the appellant to allege and prove failure to comply with the statute under consideration and that, not having done so, the...