Paulsen v. Continental Porsche Audi, Inc.
Jurisdiction | Oregon |
Parties | Karl E. PAULSEN, Appellant, v. CONTINENTAL PORSCHE AUDI, INC., an Oregon Corporation, Respondent. ; CA 17023. |
Citation | 620 P.2d 1384,49 Or.App. 793 |
Docket Number | No. 192739,192739 |
Court | Oregon Court of Appeals |
Decision Date | 15 December 1980 |
Tim J. Helfrich, Eugene, argued the cause for appellant. With him on the brief was Sahlstrom Law Offices, Eugene.
Carlton W. Hodges, Portland, argued the cause for respondent. With him on the brief was Bernard, Hurley, Crawford, Hodges & Kneeland, Portland.
Before GILLETTE, P. J., and ROBERTS and CAMPBELL, JJ.
The plaintiff has appealed from a summary judgment entered in favor of the defendant. We reverse and remand.
The undisputed facts show that the plaintiff on August 15, 1978, delivered his automobile to the defendant to have it repaired. The defendant itemized the repairs to be made on a printed form repair order. The following disclaimer was contained in the printed portion of the order:
The plaintiff did not sign the disclaimer on the repair order of August 15th. However, the plaintiff was aware of the disclaimer and had signed it on previous orders. The repairs were completed on Friday, August 18th. The plaintiff did not pick up the vehicle on that date and it remained in the possession of the defendant. During the night of August 19-20 some unknown person broke into plaintiff's automobile and stole several items of plaintiff's personal property.
On June 25, 1979, plaintiff filed the complaint in this case seeking the sum of $990 damages "by reason of defendant's failure to exercise due care of plaintiff's property." On September 4, 1979, a default judgment was entered against the defendant. On September 17, 1979, the defendant moved pursuant to ORS 18.160 to set aside the default. The court allowed the motion. The defendant's second amended answer alleged as affirmative defenses (1) that the damage was a result of plaintiff's contributory negligence "in failing to take reasonable care to arrange for the pickup and return of his vehicle," and (2) that the plaintiff by agreement had "released defendant from any responsibility for loss or damage to his vehicle or articles left in the vehicle in case of fire, theft, or any other cause." The plaintiff's motion to strike the affirmative defenses was denied by the trial court.
The defendant moved for a summary judgment on the ground that the disclaimer in the repair order relieved it of any liability for the damage or loss of the plaintiff's property. The plaintiff moved for partial summary judgment against the defendant "on the question of Defendant's second affirmative defense." The trial court entered summary judgment for the defendant.
The plaintiff has appealed to this court claiming that the trial court erred in (1) setting aside the default judgment, (2) denying motion to strike defendant's affirmative defenses, and (3) granting defendant's motion for summary judgment.
Setting aside the default judgment.
ORS 18.160 provides as follows:
"The court may, in its discretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, decree, order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect."
A motion to vacate a decree pursuant to ORS 18.160 is addressed to the sound discretion of the trial court and its ruling will not be reversed except for manifest abuse. Day v. Day, 226 Or. 499, 359 P.2d 538 (1961). The burden to show an abuse of discretion is upon the plaintiff. Bella v. Aurora Air, Inc., 279 Or. 13, 566 P.2d 489 (1977). The statute is to be liberally construed to give a defaulted party its day in court. Miller v. Miller, 228 Or. 301, 365 P.2d 86 (1961). The court's discretion should be exercised to conform with the spirit of the statute and not to defeat the ends of substantial justice. Coleman v. Meyer, 261 Or. 129, 493 P.2d 48 (1972). The prompt filing of a motion to set aside the default plus the tender of a meritorious answer are factors in favor of the defaulted defendant. Snyder v. Consolidated Highway Co., 157 Or. 479, 484, 72 P.2d 932 (1937).
In King v. Mitchell, 188 Or. 434, 440-41, 214 P.2d 993, 216 P.2d 269 (1950), the court held:
The defendant corporation's motion to set aside the default was filed 13 days after the default judgment was entered. The affidavit of the president of the defendant corporation was attached to the motion. The president swore that he had been generally aware of the plaintiff's claim for nearly one year and that the plaintiff had been "dealing" with the defendant's insurance company. Also attached to the defendant's motion was a proposed answer in the form of a general denial. Bella v. Aurora Air, Inc., supra, held that a general denial may be a meritorious defense.
We hold that the trial court did not abuse its discretion in setting aside the default judgment.
Denial of motion to strike affirmative defenses.
The motion to strike the defendant's affirmative defenses was filed under former ORS 16.100 on the grounds that the defenses were irrelevant.
The defendant's first affirmative defense alleged:
"The loss of which plaintiff complains was proximately caused by plaintiff's negligence in failing to take reasonable care to arrange for the pick up and return of his vehicle."
The plaintiff argues that the motion to strike the first affirmative defense should have been allowed because it "alleges no facts whatsoever to show what danger the plaintiff should reasonably have anticipated and why it would be unreasonable for him to fail to arrange to pick up his car." The plaintiff's argument is answered by Wood v. Miller, 158 Or. 444, 449, 76 P.2d 963 (1938):
" * * * It is well-settled rule that, where a complaint contains general allegations of negligence and carelessness, it is not essential that the details be set forth in the complaint. * * * " 1
The defendant's second affirmative defense alleged:
"Plaintiff, by agreement when he delivered his vehicle to defendant for service work, released defendant from any responsibility for loss or damage to his vehicle or articles left in the vehicle in case of fire, theft or any other cause."
The plaintiff argues that the motion to strike the second affirmative defense should have been allowed because (1) a bailee for hire cannot by contract limit his responsibility for his own negligence, and (2) the facts alleged do not establish an enforceable contract excusing the defendant from liability for its negligence.
The plaintiff's motion presumes that the defendant was a bailee for hire. The plaintiff's motion was decided in the pleading stage. The only pleadings before the court were the complaint, the second amended answer and the plaintiff's motion to strike. There is nothing in the pleadings to support the plaintiff's conclusion that the defendant was a bailee for hire. It may or may not be necessary to decide that question on the trial of the case. 2
In the absence of a motion to make more definite and certain, the last phrase in the second affirmative defense "or any other cause" would permit proof of a contract excusing the defendant from liability for...
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