Gordon Creek Tree Farms, Inc. v. Layne

• Decision Date: 07 February 1962
• Citation: Gordon Creek Tree Farms, Inc. v. Layne, 230 Or. 204, 368 P.2d 737 (Or. 1962)
• Parties: GORDON CREEK TREE FRAMS, INC., Respondent, v. W. S. LAYNE and Gail Layne, Defendants, John Hillyard and John Harris, dba Hillyard and Harris, Appellants.
• Court: Oregon Supreme Court

Page 737

368 P.2d 737

230 Or. 204

GORDON CREEK TREE FRAMS, INC., Respondent, v.W. S. LAYNE and Gail Layne, Defendants, John Hillyard and John Harris, dba Hillyard and Harris, Appellants.

Supreme Court of Oregon, Department 1.

Argued and Submitted Sept. 7, 1961.

Decided Feb. 7, 1962.

Bert E. Joachims and David W. Young, Portland, for appellants.On the briefs were Klosterman & Joachims and Weiser, Bowles & Young, Portland.

Bruce M. Hall, Portland, for respondent.On the brief were Bonyhadi & Hall, Portland.

Before McALLISTER, C. J., and ROSSMAN, WARNER, PERRY and LUSK, JJ.

WARNER, Justice.

This is an action for damages brought by the plaintiffGordon Creek Tree Farms, Inc., hereinafter called 'Gordon,' for trespass and the severance and removal of trees from its timber farm in the Larch Mountain area of Multnomah County, Oregon.

The defendantsJohn Hillyard and John Harris are copartners.They held a contract with the U. S. Bureau of Land Management for the removal of timber from a section of land adjacent to the timber farm.To accomplish their purpose, they first contracted with defendantCalvin Harmon as their logger and later with defendantsW. S. Layne and Gail Layne, his son.An order of involuntary nonsuit was allowed as to defendant Harmon.

The case was tried by the trial judge without a jury.The court found that defendants Layne, while serving defendants Hillyard and Harris, had wilfully and wantonly trespassed upon plaintiff's land and removed therefrom timber of the value of $4,615.20.Relying on ORS 105.815, the court entered judgment against the Laynes and Hillyard and Harris for double that amount.From that judgment, Hillyard and Harris, alone, appeal.We will from this point refer to Hillyard and Harris as 'the defendants' and when necessary, refer to the defendants Layne as 'the Laynes.'

The following facts are not disputed.Plaintiff Gordon was the owner and in possession of timbered real property in Sections 2and12, Township 1 South, Range 5 East, and Section 36, Township 1 North, Range 5 East, W.M., in Multnomah County, Oregon.The alleged trespasses occurred during the years 1958 and 1959.

In January, 1957, the U. S. Bureau of Land Management entered into a contract with the defendants for the sale of certain timber in Section 1, Township 1 South, Range 5 East, W.M., in the Mt. Hood National Forest.Their cutting rights expired February 25, 1959, with a year thereafter to remove any severed timber from the contract area.The boundary lines of Sections 36and12 connect with the north and south boundary lines of Section 1.

Harmon intermittently logged for the defendants from April, 1957, until October 27, 1958.The Laynes, who started immediately after Harmon, left, were continuously active until sometime in October or November, 1959.The trespasses for which Gordon recovered judgment occurred during the period of the Laynes' activity and explains why a motion for nonsuit as to defendant Harmon was allowed.

The appellants concede that there was some cutting on Sections 12and36.

The appellants assign 10 items of alleged error.In order of the defendants' presentation, the first relates to the court's denial of their motions for nonsuit and directed verdict.The second assignment represents that the findings of fact do not support the judgment.The seven following assignments rest upon the court's adverse rulings on their objections to its findings of fact or refusal to make certain findings requested by them.The tenth and last assignment is addressed to the denial of defendants' motion to set aside the judgment and grant a new trial.

We first look to the defendants' representations that error was committed in denying their motions for nonsuit and directed verdict.

The grounds therefor are the same in both motions: first, that there is no evidence of trespass committed by the four defendants; and, second, that there is no evidence of a relationship between Hillyard and Harris and the Laynes which would cast upon the first two defendants named any legal responsibility for the acts of the Laynes.At this juncture we note that the plaintiff Gordon did not plead any particular legal relationship between the Laynes and the defendants; that is, whether the Laynes were employees of defendants or labored as independent contractors.

In arriving at our conclusion with reference to this assignment our review of the record has been governed by the following rules.

The trial judge made findings of fact on both points relied upon by the defendants, but contrary to their contentions.Under the circumstances, the findings have the effect of a verdict.They can not be set aside unless this court is of the opinion that the findings are not supported by any competent, substantial evidence, as distinguished from the task of weighing the evidence.Burke Machinery Co. v. Copenhagen, 138 Or. 314, 316, 6 P.2d 886, and cases there cited.

We said in Sexton v. Kelly, 185 Or. 1, 12, 200 P.2d 950:

'It is not the function of this court in law actions to pass on the credibility of witnesses, to weight the evidence, or to resolve conflicting testimony.These are matters for the determination of the Circuit Court.It is, however, the province of this court, when properly presented, to decide whether there is substantial evidence to support the findings of the court or the verdict of the jury, as the case may be. * * *' It is settled that whenever a defendant has not rested upon a motion for nonsuit, but proceeds instead to adduce evidence in support of his own contentions, such evidence may be considered in order to sustain a recovery by the plaintiff.We have repeatedly held that we will not reverse a ruling of the trial court denying a nonsuit whenever upon the whole case, as presented by toth parties, the record shows sufficient substantial evidence to take the case to the jury.Johnson v. Underwood, 102 Or. 680, 688, 203 P. 879, and cases there cited;Berkshire v. Harem, 181 Or. 42, 75, 178 P.2d 133; Buckles, Exec. v. Continental Cas. Co., 197 Or. 128, 133, 251 P.2d 476, 252 P.2d 184.

We also take note that when giving consideration to a motion for nonsuit or one for a directed verdict, the evidence must be viewed in the light most favorable to plaintiff and accord plaintiff the benefit of every reasonable inference which may be drawn from the evidence and every intendment is in his favor.Buckles, Exec. v. Continental Cas. Co., supra(197 Or. at 134, 251 P.2d 476, 252 P.2d 184);Keys v. Griffith, 153 Or. 190, 196, 55 P.2d 15, and cases there cited.

Under the circumstances we have treated the court's denial of both motions together.

We have given careful attention to the long record of testimony and the 58 exhibits which were introduced, as well as the earnest arguments of the defendants in support of their contentions of existent error.We have also given consideration to the thoughtful and extended opinion of the able trial judge who had the additional advantage of being able to evaluate the credibility of the several witnesses.As a result we are persuaded that the court did not err in denying the motions which are the subject of the first assignment and that its findings to which the defendants object were supported by substantial evidence.We have not, however, set down our step-by-step analysis of the record.To do so would unduly extend this opinion without any advantage to the profession or the parties litigant.

It is sufficient to say that there was ample proof of trespass and substantial evidence warranting a holding which cast upon Hillyard and Harris liability as cotrespassers.

Contrary to the court's finding that defendants Layne were agents and employees of Hillyard and Harris, the defendants argue that the Laynes were independent contractors.Relying on that premises, appellants conclude that they are not chargeable with the trespass.

The question whether the Laynes were employees and agents or independent contractors is a close one and made more difficult by the absence of any writing which might be of assistance in its resolution.However, even if it be assumed that the Laynes were independent contractors, it would not, under the circumstances present in this case, exonerate the defendants Hillyard and Harris from liability.

The general rule that an employer is not liable for the torts of an independent contractor or his servants is subject to numerous qualifications and exceptions.57 C.J.S.Master and Servant§ 584, p. 353.It is well settled that an employer who orders work to be performed from which, in the natural course of things, injurious consequences must be expected to arise unless means are adopted by which such consequences may be prevented, is bound to see that necessary precautions are taken to prevent injury and such person can not by employing some other person relieve himself of his liability to do what is necessary to prevent the work from becoming wrongful.Law v. Phillips, 136 W.Va. 761, 68 S.E.2d 452, 33 A.L.R.2d 95, 105;27 Am.Jur. 515, Independent Contractors§ 38;Prosser, Torts (2d ed.), 358, § 64.The foregoing rules is sufficiently comprehensive to embrace not only work which is regarded as 'inherently' or 'intrinsically dangerous,' but also work which will in the ordinary course of events occasion injury to others if certain precautions are omitted, but which may as a general rule be safely executed if such precautions are taken.27 Am.Jur., supra, at 315-316.

A burden rests upon all to avoid trespassing upon the property of others.The weight of this burden is enhanced by the few defenses available to one so charged.'When one commits a trespass upon the * * * property of another,' says Am.Jur. (Vol. 52, Trespass, 864, § 35), 'whether intentional or unintentional, there are few defenses which will excuse and relieve him from liability.'

This burden to avoid trespass is especially constant between adjoining landowners or parties in...