Government Emp. Ins. Co. v. Herring

• Jurisdiction: Oregon
• Court: Oregon Supreme Court
• Writing for the Court: Before O'CONNELL; HOLMAN
• Citation: Government Emp. Ins. Co. v. Herring, 257 Or. 201, 477 P.2d 903 (Or. 1970)
• Decision Date: 16 December 1970
• Parties: GOVERNMENT EMPLOYEES INSURANCE COMPANY, a corporation, Appellant, v. William O. HERRING, and Florian J. Shasky, Respondents.

Page 903

477 P.2d 903

257 Or. 201

GOVERNMENT EMPLOYEES INSURANCE COMPANY, a corporation, Appellant, v. William O. HERRING, and Florian J. Shasky, Respondents.

Supreme Court of Oregon.

Argued and Submitted Sept. 10, 1970.

Decided Dec. 16, 1970.

Ridgway K. Foley, Jr., Portland, argued the cause for appellant. With him on the briefs were Souther, Spaulding, Kinsey, Williamson & Schwabe, Portland.

Robert H. Grant, Medford, argued the cause for respondent Shasky. On the brief were Kelly & Grant, Medford.

Robert A. Boyer, Medford, argued the cause but filed no brief for respondent Herring.

Before O'CONNELL, C.J., and McALLISTER, DENECKE, HOLMAN, HOWELL and MENGLER, JJ.

HOLMAN, Justice.

Plaintiff, an insurance company, brought a declaratory judgment proceeding to determine whether it was required by its liability policy to defend its insured, the defendant Herring, in an action brought against him by the other defendant, Shasky. Plaintiff contended it was relieved from its obligation to defend Herring because he had failed to give it notice of the accident with Shasky 'as soon as practicable' as required by the policy. Both defendants filed substantially identical answers, which denied failure to give notice and pleaded two affirmative defenses. The first affirmative defense alleged that failure to give notice, if such failure existed, was excused because of ignorance and mistake regarding the nature of the accident, and the nature, seriousness and extent of damages. The second alleged failure to give notice because of inadvertence and excusable neglect.

The parties thought that the second affirmative defense was in equity and that defense was tried first, without objection, by the court without a jury. It resulted in the court's signing and entering a memorandum opinion which held:

'* * * It is necessary for the Court to determine whether the facts would lead an ordinarily, prudent and reasonable man to believe that the occurrence mentioned would become the basis of a claim for damages. The Court is of the opinion that it would and, therefore, finds against the defendants on their equitable defenses.

'Counsel for plaintiff may prepare appropriate findings, conclusions and order.'

No other findings, conclusions, or order were ever filed. However, we deem the court's memorandum opinion to constitute a sufficient finding and order to finally dispose of the second affirmative defense.

After the second affirmative defense was tried as an equitable matter, the balance of the case was tried before a jury. The verdict which was submitted to the jury was composed of two interrogatories. The first was:

'Did the defendant, William O. Herring, give notice to plaintiff of the collision between his vehicle and defendant, Florian J. Shasky's bicycle as soon as was practicable in accordance with the requirements of his policy?'

This question was answered in the negative. The second interrogatory was:

'Was the failure of defendant, William O. Herring, to give notice to plaintiff as soon as was practicable excused under the Court's instructions and the facts and circumstances involved in this case?'

The jury's answer to this was in the affirmative. Pursuant thereto, a judgment was entered declaring that plaintiff was obligated to defend the defendant Herring and to pay in accordance with its policy any judgment rendered against Herring as the result of the defendant Shasky's case against him. The plaintiff appealed.

The accident occurred when the defendant Herring, preparatory to leaving his vehicle which was parked at the curb, opened his door just as the defendant Shasky came by on his bicycle. Shasky collided with the door and was thrown to the pavement. He suffered a broken hip. Herring was aware of Shasky's injury because he read an item in the newspaper relating thereto about three days after the accident.

Plaintiff contends that the trial court erred in denying its motion to take consideration of defendant's first affirmative defense from the jury. Its motion was in part as follows:

'We also make this motion upon the further ground that this identical defense, entitled an equitable defense, has previously been tried by the Court as an equitable matter and the Court has entered its order denying that ground as an equitable defense. The evidence presented in support of what has been considered the legal defense on the same basis was identical with the evidence previously submitted in the proceeding as an equitable defense, and we believe the Court's ruling heretofore made on that matter is the law of the case and is res judicata in the matter so far as the question is concerned. Permitting the matter now to be submitted to the jury would in effect permit them to reach a result different on the same facts that the Court has already ruled on.'

The trial court, in denying the motion, stated as follows:

'* * * The evidence presented in support of the equitable defense was different than the evidence presented on the legal defense. Jack Crawford testified in support of it...