Gowans v. Northwestern Pac. Indem. Co.
| Decision Date | 10 November 1971 |
| Parties | Shelley M. GOWANS and Patricia Y. Gowans, Appellants, v. NORTHWESTERN PACIFIC INDEMNITY COMPANY, Respondent. . Submitted on Respondent's Petition for Rehearing |
| Court | Oregon Supreme Court |
Edward H. Warren, Portland, and Hershiser, Mitchell & Warren, Portland, for respondent.
Before O'CONNELL, C.J., and McALLISTER, * DENECKE, HOLMAN, TONGUE, HOWELL and BRYSON, JJ.
Defendant has petitioned for a rehearing, primarily upon the ground that our opinion in this case did not discuss and rule upon defendant's contention that the record on appeal in this case was fatally defective for the reason that plaintiffs failed to file a statement of the points on which they intended to rely (as required by ORS 19.074), and instead stated that defendant relied solely on the contention that plaintiffs filed a 'narrative statement' of the facts (as provided by ORS 19.088) which stipulated that payment of the reward did not constitute a 'theft loss.'
It is true that on this appeal defendant relied upon both of these contentions and that our opinion should have so stated. At the time of argument, however, counsel for defendant was asked whether defendant contended that it was prejudiced in any way and whether defendant contended that any part of the record omitted by plaintiffs was needed by defendant for a proper consideration of the case on the merits. Defendant's counsel then frankly stated that defendant made no such contentions, but nevertheless contended that in the absence of such a 'statement of points' the record on appeal was 'fatally defective.' Without waiving that contention, he then proceeded to argue the merits of the case.
The sole question presented for decision on the merits in this case was whether, under facts stipulated by the parties, the payment of the reward constituted a 'loss by theft' under the policy of insurance. That was also the sole issue presented for decision by the trial court and was obviously the sole and only 'point' relied upon by plaintiffs on this appeal. Thus, plaintiffs' sole assignment of error was that 'the Court erred in concluding as a matter of law that the money paid by plaintiffs as a reward for the recovery of stolen jewelry, did not constitute a 'loss by theft' under the insurance policy.'
Defendant is correct in the statement that when, as in this case, an appellant's 'designation of record' on appeal does not include the entire record, ORS 19.074 then provided that he shall file 'a plain and concise statement of the points on which he intends to rely' and 'may rely on no other points than those set forth in such statement.' 1 When, however, as in this case, the appeal presents only one obvious point for decision and no claim of prejudice is made by respondent, this court has ample power to proceed with a determination of that point on its merits.
The failure to file a proper 'statement of points' under ORS 19.074 is not jurisdictional. ORS 19.033. It is also provided by ORS 19.108(1) that:
'When it appears to the court to which the appeal is made that the record is erroneous or incomplete in any particular substantially affecting the merits of the appeal, on motion of a party or on its own motion the court may make such order to correct or supplement the record as may be just or may dismiss the appeal if the error or omission is without reasonable excuse.'
It will be noted that this statute provides for relief even as to matters 'substantially affecting the merits of the appeal.'
When the defect in the record on appeal in this case was called to plaintiffs' attention as the appellants in this case by the filing of defendant's brief as respondent, plaintiffs should have filed a motion to correct the record by the filing of a proper 'statement of points,' as in Wynn v. Sundquist, 92 Or.Adv.Sh. 1340, 485 P.2d 1085 (1971), as cited by defendant. Under the circumstances of this case, however, and under the authority conferred on this court by ORS 19.108(1), we consider the assignment of error in appellants' brief to be a satisfactory statement of the single and obvious point relied upon by plaintiffs on appeal of this case.
Defendant says that to permit plaintiffs to 'disregard with impunity' the provisions of ORS 19.074 would 'provide a boon to those who ignore the law and a bane to those who hazard to rely upon it.' We do not condone plaintiffs' failure to follow the plain and simple requirements for preparation of the record on this appeal.
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