Schafer v. Fraser

• Decision Date: 30 March 1955
• Citation: 206 Or. 446,290 P.2d 190
• Parties: Donald A. SCHAFER and James P. Cronan, Jr., Co-partners, Appellants, v. William M. FRASER and Marie Fraser, Respondents.
• Court: Oregon Supreme Court

Page 190

290 P.2d 190

206 Or. 446

Donald A. SCHAFER and James P. Cronan, Jr., Co-partners, Appellants, v. William M. FRASER and Marie Fraser, Respondents.

Supreme Court of Oregon, En Banc.

Argued and submitted March 30, 1955.

Harlow F. Lenon, Portland, argued the cause for appellants. On the briefs were Maurice C. Corcoran, James P. Cronan, Jr., and Schafer, Holbrook & Cronan, Portland.

Jonathan Edwards, Portland, argued the cause for respondents. On the brief were Collier, Bernard, Bernard & Edwards, Portland.

ROSSMAN, Justice.

This is an appeal by the plaintiffs from a judgment of the circuit court which denied the relief sought by the complaint and granted the defendants judgment against the plaintiffs in the sum of $12,418.26 upon a counterclaim. The judgment was entered after verdict by a jury.

The plaintiffs-appellants, two in number, as partners, are engaged in the practice of law. The defendants-respondents, who are husband and wife, operate a farm upon Sauvies Island near Portland which produces as its principal yield beef cattle. The appellants, as associates of another firm of attorneys, Hicks, Davis & Tongue, which represented the respondents, performed professional services for the respondents in the trial of a case. The latter was instituted by the respondents against the Aluminum Company of America in the United States District Court at Tacoma upon a claim that fluorine gases escaped from a plant of the Aluminum Company located at Vancouver, Washington, and drifted across the Columbia river to farms on Sauvies Island, including the farm of the respondents, thereby poisoning the forage and causing the grazing cattle to become afflicted with a malady. The trial of the case resulted in the entry of a judgment in favor of the respondents and against the Aluminum Company in the amount of $60,000.

According to the complaint which was filed in the case at bar, the appellants expended for the respondents in the trial of the fluorine poisoning case $3,127.34 for which they received no reimbursement, except $59.27. Judgment was sought for $3,068.07. The answer denied the asserted indebtedness. As a counterclaim, it declared that when the appellants' services were engaged as associate counsel, the appellants, as attorneys, represented many other farmers on Sauvies Island who asserted claims against the Aluminum Company similar to that of the respondents. Continuing, the counterclaim alleged that the appellants' other farmer clients had an interest in common with the respondents in establishing the basic, or initial, liability of the Aluminum Company for the escape of the fluorine gas and the poisoning thereby of the forage. The counterclaim averred that the appellants, as attorneys for their other clients on Sauvies Island, promised on their behalf that they would share pro rata in bearing the expenses incurred in establishing the liability just mentioned and represented that the appellants possessed authority from their other clients to make those promises. Further, the pleading affirmed that, contrary to their assertions, the appellants had no authority to make for their other clients the agreement for sharing the expense of establishing the Aluminum Company's basic liability. It averred that, in reliance upon the appellants' promises, the respondents spent more than $26,000 in establishing the liability of the Aluminum Company for the fluorine poisoning, and that, due to the fact that the appellants had no authority to make on behalf of their other clients the agreement just mentioned, the respondents were damaged in the amount of $18,200. After the completion of the respondents' trial against the Aluminum Company, the appellants made settlements, so the counterclaim states, of the claims of their other clients in the total sum of $140,000. The counterclaim sought judgment against the appellants for $18,200. The verdict and its resulting judgment granted the appellants nothing, but sustained the counterclaim to the extent of $12,418.26.

The first of the assignments of error follows:

'The Court erred in refusing to dismiss the counterclaim on the ground that it failed to state facts sufficient to constitute a cause of action.'

We will now consider that assignment of error. In support of it, the appellants advance these contentions:

'1. No consideration was pleaded for the contract alleged in the counterclaim.

'2. The counterclaim states no legal claim for damages, and the facts pleaded therein prove that, as a matter of law, respondents suffered no damages.'

The record shows that by 1948 the respondents became convinced that fluorine gases escaped from the Vancouver plant of the Aluminum Company of America, drifted across the Columbia river to Sauvies Island and poisoned the forage upon which their cattle fed. About that time they consulted Mr. E. F. Bernard, a member of the Portland bar, in regard to their difficulty. Up to that time no case had ever gone to judgment in an American court based upon a claim that fluorine gas escaping from an aluminum reduction plant had caused the poisoning of grazing livestock and, hence, the problem which the respondents brought to Mr. Bernard was not elucidated by American precedents. After Mr. Bernard had become satisfied that the respondents' case possessed merit, he conferred with the appellants, who represented other farmers along the lower Columbia river valley in the prosecution of claims similar to that of the respondents, and later recommended to his clients that they employ the appellants as associate counsel. The recommendation was accepted. In March, 1949, Mr. Bernard and the appellants filed, on behalf of the respondents, an action against the Aluminum Company in the United States District Court at Tacoma, seeking damages in the sum of $300,000 upon charges that fumes from the Aluminum Company's plant caused the respondents to suffer damages to both livestock and land. Later, as attorneys for three other farmers on the island, the appellants filed cases similar to that of the respondents. The appellants represented twelve farmers on Sauvies Island, in addition to the respondents and the three just mentioned, all of whom asserted claims arising out of the escape of fluorine gas from the Aluminum Company's plant. Mr. William Nash, a member of the Portland bar, represented another farmer on the island who had a claim similar to that of the respondents.

In the early part of 1950 the respondents' case was assigned to June 5, 1950, for trial. In March of 1950 ill health compelled Mr. Bernard to withdraw as counsel from the case and thereupon the appellants, in order to afford the respondents opportunity to secure counsel of their own choice, also withdrew. At that juncture, the respondents retained as counsel the aforementioned firm of Hicks, Davis & Tongue. That firm, persuaded by the same reasons which had influenced Mr. Bernard, told the respondents that they ought to employ the appellants as associate counsel. The advice was followed and the appellants again entered the case.

Although the respondents' case against the Aluminum Company was set for June 5, the trial of the other three cases in which the appellants were counsel was deferred to the fall of 1950. An effort of the appellants to induce the court to consolidate the four cases for trial failed. Accordingly, the respondents' case was the first of the group which was scheduled for trial, and became regarded as a test case.

As the day of the trial drew near it became apparent that the presentation of the case would necessitate the expenditure by the respondents of large sums of money. In addition to the normal expenditures, such as those for a court reporter and a daily transcription of the testimony, the expenses, as anticipated, would consist in part of payment for expert witnesses, railroad fares, hotel bills and photographic services. One item of evidence indicates that the transcription of testimony cost $3,774.15. Another item shows payment to a photographer of $888.47. We have mentioned the fact that the place of the trial was Tacoma. That circumstance required the respondents, their attorneys and witnesses to travel to Tacoma and stay in hotels. Some of the witnesses were in attendance for the entire ten weeks of the trial. The respondent, William Fraser, testified that the hotel bill was not less than $2,457.44 not including anything for his wife, son and himself, all three of whom testified. Although the sums just mentioned were sizeable, they were by no means the heaviest which a litigant would have to incur who proposed to prove that the Aluminum Company was responsible for the ill condition on Sauvies Island about which the farmers were complaining. In order to succeed, a plaintiff would have to prove that (1) the Aluminum Company's plant created fluorine gas; (2) notwithstanding the precautions taken by the company, fluorine gas escaped from the plant; (3) the noxious gas drifted across the Columbia to Sauvies Island; (4) the gas settled upon and impregnated the forage on the island in sufficient quantities to be harmful to the beef and dairy herds; and (5) the malady which was evident in the herds was due to the fumes which were emitted by the Aluminum Company's plant.

It is evident that, in order to establish the facts mentioned in the preceding paragraph, the services of chemical engineers and veterinarians would be required. The chemical engineers would have to examine the aluminum reduction plant and the veterinarians would have to examine the livestock.

The appellants had been engaged, prior to their employment in the respondents' case, in the successful representation of farmers who lived near the Troutdale aluminum reduction plant of the Reynolds Metals Company. Those farmers had claims similar to that of the respondents and in representing them the appellants had learned, not only the applicable legal principles, but, also, the witnesses who could...