Hammons v. Schrunk

Decision Date12 December 1956
Citation209 Or. 127,305 P.2d 405
PartiesThular B. HAMMONS, Respondent, v. Terry D. SCHRUNK, Sheriff of Multnomah County, Oregon, and Fidelity & Deposit Company of Maryland, a corporation, Appellants.
CourtOregon Supreme Court

John Gordon Gearin, Portland, and Willis A. West, Deputy District Attorney, Portland, argued the cause for appellants. With them on the briefs were Koerner, Young, McColloch & Dezendorf, Marshall C. Cheney, Jr., and William M. Langley, District Attorney, all of Portland.

Don Eva, Portland, argued the cause for respondent. With him on the brief were Samuel M. Bowe, Grants Pass, and Bartlett Cole, Portland.

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

PERRY, Justice.

On the 24th day of March, 1952, the plaintiff commenced an action in the circuit court of the state of Oregon for Josephine county in which she alleged that she had suffered personal injuries in an automobile accident through the negligence of one Paul B. Bugg. Paul B. Bugg, a traveling salesman, maintained his residence in Multnomah county, Oregon. The plaintiff caused a summons in the Josephine county action to be forwarded to Terry D. Schrunk, sheriff of Multnomah county, for service upon Mr. Bugg. The summons was not served by the sheriff of Multnomah county within 60 days of the receipt thereof, and the plaintiff's right to pursue her cause of action against Mr. Bugg became barred by the statute of limitations. The plaintiff then brought this action against the defendant Terry D. Schrunk, as sheriff of Multnomah county, and his bondsman Fidelity & Deposit Company of Maryland, a corporation, to recover damages suffered by the plaintiff from the loss of her right of action against Paul B. Bugg. The plaintiff alleged in her complaint that she suffered this loss by reason of the negligent failure of the defendant sheriff to serve the summons upon Mr. Bugg in Multnomah county.

The jury returned a verdict for the plaintiff, and the defendants appeal.

The defendants state as their first assignment of error the failure of the presiding judge of the Fourth Judicial District to grant their motion objecting to a trial of the issues before a pro tempore judge appointed by the Chief Justice of this Court to preside in cases in that district, which motion contained no charge of prejudice on the part of the judge pro tempore.

The defendants do not contend that the Act providing for the appointment of pro tempore judges by the Chief Justice is unconstitutional, but contend that a litigant cannot be compelled to submit his cause in a court presided over by a pro tempore judge without the litigant's express or implied consent. They contend that ORS 3.102 should be read in pari materia with ORS 3.105 to 3.115.

The people of the state, through legislative enactment, because of the congested trial court dockets, provided for the appointment of Circuit Judges pro tempore by the Chief Justice of this court. ORS 3.105 to 3.115. This Act is complete within itself. ORS 3.112 provides the manner in which a judge pro tempore appointed under the terms of the Act can be disqualified by a litigant and the result of failure to do so.

In order to disqualify a judge pro tempore, the same procedure must be followed as that required to disqualify a regular duly-elected circuit judge, and the defendants' failure to comply with the statute results in consent, thus the defendants' contention here is without merit. The constitutionality of ORS 3.105 to 3.115 not being raised, we express no opinion on this issue.

The defendants assign as error the refusal of the trial court to sustain their motion for a directed verdict.

There is a disputable presumption that a public officer has performed his official duties, ORS 41.360(15), and a return stating that the defendant named cannot be found places upon a plaintiff suing a sheriff for misfeasance the burden of producing evidence to overcome that presumption. 47 Am.Jur. 971, 972, Sheriffs, Police and Constables § 222.

It is required of an officer charged with the duty of serving a summons to faithfully make all reasonable efforts and to use reasonably due diligence to find and serve a defendant within the time allotted by statute to effect that service. 80 C.J.S., Sheriffs and Constables, § 44e, p. 217.

While the law holds public officers to strict performance of their duties and sanctions no negligence, yet the law is reasonable in its requirements; it does not impose unreasonable exactions nor does it ask the impossible; that which is reasonable is all that is required. What is a reasonable performance of a duty imposed must be determined by the facts of each case.

The evidence in this case discloses that Mr. Bugg, the defendant in the plaintiff's case pending in Josephine county, resided with his wife in a residence which he had purchased some nine or ten years before at 1817 North Holman street in Portland, Multnomah county, Oregon; that, while he was a traveling salesman and sometimes was absent from the state, he had been at his place of residence in Portland some part of the day or night thirty of the days that the sheriff had the summons in his hands for service, and had not concealed nor attempted to conceal his whereabouts while there to avoid service of process. This evidence in and of itself was sufficient, if believed by the jury, to overcome the statutory presumption and to raise a question of fact to be determined by them as to whether or not in good faith reasonable effort and due diligence was exercised by this defendant.

If the plaintiff is to recover against the defendants in this cause, she must establish the following issues:

(1) The defendant sheriff was negligent.

(2) His negligence was the proximate cause of plaintiff's loss of her cause of action against Bugg.

(3) The damage she suffered by the loss of her cause of action.

The defendants by their motion for a directed verdict, and, also, by objections throughout the trial to the introduction of any evidence relating to the accident which occurred in Josephine county, the injuries suffered by the plaintiff therein, and the ability of Mr. Bugg to respond in damages, raise the proposition that damages suffered by the plaintiff through the negligence of Mr. Bugg cannot be recovered against these defendants because they are too speculative and conjectural.

The basis of defendants' contention is that the evidence so offered would necessarily require speculation and conjecture upon what might have been the outcome of the trial had one been held in the case of Hammons v. Bugg in Josephine county, Oregon.

In 15 Am.Jur. 410, Damages § 20, the following is stated 'The damages recoverable in any case must be susceptible of ascertainment with a reasonable degree of certainty, or, as the rule is sometimes stated, must be certain both in their nature and in respect of the cause from which they proceed. Damages which are uncertain, contingent, or speculative cannot be recovered either in actions ex contractu or actions ex delicto. As between possible methods by which a loss may be computed, the law prefers that which leads to certain, and not speculative, results. A reason given for the rule is that uncertain or speculative damages are not susceptible of the exactness of proof that is required to fix a liability.'

In Becker v. Tillamook Bay Lumber Co., 194 Or. 134, 240 P.2d 237, we adopted from 15 Am.Jur. 413, Damages § 22, a rule of 'reasonable certainty' as to the nature and cause from which the damages arose.

It is to be noted, however, that 'the damages recoverable are nearly always involved in some uncertainty and contingency, and, therefore, it is a rule that reasonable certainty only is required.' 15 Am.Jur. 412, Damages § 21.

We have been cited no cases in this jurisdiction involving the measure of damages, or their speculative character, arising from negligence causing the loss of a cause of action, but it appears from the case of Milton v. Hare, 130 Or. 590, 280 P. 511, that, if a plaintiff had a good cause of action, a court would permit relitigation of that suit in the tort action for the loss of the cause of action. We find that other jurisdictions permit recovery of what would reasonably have been recovered in the original action for such a loss. Lally v. Kuster, 177 Cal. 783, 171 P. 961; Piper v. Green, 216 Ill.App. 590; McLellan v. Fuller, 226 Mass. 374, 115 N.E. 481; Patterson & Wallace v. Frazier, Tex.Civ.App.1906, 93 S.W. 146, reversed on other grounds, 100 Tex. 103, 94 S.W. 324; O'Neill v. Gray, 2 Cir., 30 F.2d 776. And we find no good reason why the plaintiff cannot litigate her former cause of action in this cause to prove her loss. For, if the plaintiff had a good cause of action against Mr. Bugg, it is reasonable to believe that a recovery would have been had in her action in Josephine county. To hold otherwise would be to say that it is unreasonable to believe that justice will be accorded in the courts.

To establish damage, then, it was necessary to prove that plaintiff had lost a good cause of action; for, if, in fact, the plaintiff did not have a good cause of action against Bugg, she could suffer no loss. Milton v. Hare, supra. The same reasoning is applicable to the introduction of evidence to show the ability of Mr. Bugg to respond in money to any judgment that might have been recovered in plaintiff's action against him.

The trial court did not err in admitting evidence that would have been admissible in the cause filed in Josephine county, nor in admitting evidence of the collectibility of that judgment, except as to the item of life insurance hereinafter discussed.

The defendant sheriff did not himself receive or attempt to serve the summons upon Mr. Bugg. All of...

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