Dlouhy v. Simpson Timber Co.

• Jurisdiction: Oregon
• Parties: Lester DLOUHY, Appellant, v. SIMPSON TIMBER COMPANY, a corporation, Respondent, Duncan & Moore Logging, Inc., an Oregon corporation; and Wayne Duncan and Bruce V. Moore, doing business as Duncan & Moore Logging Company, Defendants.
• Citation: 247 Or. 571,431 P.2d 846
• Court: Oregon Supreme Court
• Decision Date: 20 June 1967

Page 846

431 P.2d 846

247 Or. 571

Lester DLOUHY, Appellant, v.SIMPSON TIMBER COMPANY, a corporation, RespondentDuncan & Moore Logging, Inc., an Oregon corporation; and Wayne Duncan and Bruce V. Moore, doing business as Duncan & Moore Logging Company, Defendants.

Supreme Court of Oregon, In Banc.

Submitted June 20, 1967, on Respondent's Motion to Dismiss Appeal Decided Sept. 7, 1967.

Asa L. Lewelling, Salem, for the motion.

Gary Jones and Rhoten, Rhoten & Speerstra, Salem, contra.

Before PERRY, C.J., and McALLISTER, SLOAN, O'CONNELL, GOODWIN, DENECKE, and HOLMAN, JJ.

GOODWIN, Justice.

Plaintiff in a 'third-party' personal injury action under ORS 656.595 appeals from an order dismissing the action against Simpson Timber Co., one of several defendants.As the action is still pending in the circuit court against various other named defendants, Simpson has moved to dismiss the appeal as premature.

Ordinarily an interlocutory order is not appealable.Eena Co. v. Zosel, 164 Or. 99, 95 P.2d 428, 99 P.2d 1022(1940).The reason for this rule is not that the word 'interlocutory' carries any special force.But an interlocutory order ordinarily is not, in the language of the relevant statute, 'an order affecting a substantial right, or which in effect determines the action or suit so as to prevent a judgment or decree therein.'ORS 19.010.

In Martin v. City of Ashland, 233 Or. 512, 378 P.2d 711(1963), we dismissed on our own motion as premature an appeal from a trial court order which removed from the case part, but not all, of the defendants.There the action was against a city and a number of its elected and appointed officials together with a city police officer whose conduct was alleged to have given rise to a cause of action.In that casethe trial court had sustained the demurrers of all defendants except the police officer.The action continued as to him.We held that so long as the action continued against the individual defendant, the questions tendered in the appeal were not ripe for review.The questions were, however, of a kind that would not justify review until after a final judgment against the police officer.In that case, if the officer were found not to have been guilty of the misconduct alleged in the complaint, the tendered questions concerning the nature and scope of governmental immunity would never be reached.If, and only if, the jury should find against the officer, would it be necessary on appeal to examine the problem of derivative liability on the part of the city and of its officials.

In the case at bar, the matter of 'ripeness' is somewhat more complicated because the plaintiff is not seeking to impose upon Simpson derivative, or vicarious, liability based solely upon the acts of those defendants still in the case.The plaintiff is seeking to impose upon Simpson direct liability arising out of the acts of Simpson's own employes.Thus, the trial court's order, if allowed to stand, does affect the substantial rights of the parties.We believe, nonetheless, that the rule followed in Martin v. City of Ashland, supra, should be applied here.SeeSteenson v. Robinson, 236 Or. 414, 385 P.2d 738, 389 P.2d 27(1964);Collins v. Lantz, 234 Or. 268, 381 P.2d 213(1963).If the rule results in duplication of effort in some cases, the duplication of effort will occur at the trial court leel, where duplication of effort is less harmful than in the Supreme Court.

The statutory and judicial rules against piecemeal appeals make possible the economical deployment of judicial manpower.The rules are consistent with Oregon Constitution, Art. VII (Original), § 6, limiting appellate jurisdiction to the review of final decisions.The circuit courts, as courts of first instance, have been established for...