School Dist. No. 106 OF CLACKAMAS COUNTY v. New Amsterdam Casualty Co.

• Decision Date: 20 May 1930
• Citation: 288 P. 196,132 Or. 673
• Parties: SCHOOL DIST. NO. 106 OF CLACKAMAS COUNTY v. NEW AMSTERDAM CASUALTY CO.
• Court: Oregon Supreme Court

288 P. 196

132 Or. 673

SCHOOL DIST. NO. 106 OF CLACKAMAS COUNTY v. NEW AMSTERDAM CASUALTY CO.

Supreme Court of Oregon

May 20, 1930

Department 2.

Appeal from Circuit Court, Multnomah County; G. H. McCulloch, Judge.

Action by School District No. 106 of Clackamas County against the New Amsterdam Casualty Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

The plaintiff, by this action, seeks to recover from the defendant corporation, as surety on the official bond of one Russell W. Robertson, clerk of the plaintiff school district for the school year 1924-25, the sum of $712.34, asserted shortage in the accounts of the school fund within the period named.

In its answer, the defendant admitted the execution of a bond, but denied the shortage in the funds of the clerk, and for its defense pleaded both release and estoppel.

The cause was tried to the court without a jury, with the result that plaintiff recovered from defendant a judgment for the full sum demanded; i. e., $712.34, with costs and disbursements, together with $200 as attorney's fees.

The defendant, appealing, presents to the court the following propositions: (1) That, in the absence of any finding on the issues arising out of its affirmative defenses, the court was without power to render judgment against defendant; (2) that under the admitted facts of the cause, it was released of all liability; (3) that the court was not authorized by contract or by statutory enactment, to include in the judgment the recovery of attorney's fees for the plaintiff.

Lamar Tooze, of Portland (Jay S. Moltzner and Jaureguy & Tooze, all of Portland, on the brief), for appellant.

O. G Edwards, of Portland (Robert F. Maguire, of Portland, on the brief), for respondent.

BROWN, J. (after stating the facts as above).

At the outset it will be helpful to note that the receipt or alleged "release" invoked in defense of plaintiff's cause arose from and in the settlement of a claim for $2,587.75, based upon a different policy and covering a different period of time, and for peculations other than those which resulted in the filing of this action.

With respect to the first proposition presented by defendant, it is proper to observe the holding of this court in a number of instances to the effect that, when a law action is tried to the court without a jury, it is the duty of the court to enter findings of fact upon all material issues, and, upon the failure of the court to make such findings upon all material issues, the judgment is void. Oregon Home Builders v. Montgomery Investment Co., 94 Or. 349, 184 P. 487; Maeder Steel Products Co. v. Zanello, 109 Or. 562, 220 P. 155. See Or. L. § 158. Since these decisions were rendered, this section of our Code has twice been amended. See chapter 211, p. 396, Gen. Laws of Oregon 1925 and chapter 165, p. 184, Gen. Laws of Oregon 1927. As amended in 1927, it reads:

"Upon the trial of an issue of fact by the court, its decision shall be given in writing, and filed with the clerk during the term or within twenty days thereafter. The decision shall consist of either general or special findings without argument or reason therefor. All parties appearing in the case shall have the right to request either special or general findings, and if any findings are requested by any party litigant such requested findings shall be served upon all the other parties who have appeared in the case and such adverse parties may, within ten days after such service, present to the trial judge objections to such proposed findings or any part thereof and request other, different, or additional findings. When the findings are prepared by the court or judge thereof, a copy of such findings shall be served upon, or mailed to, all parties appearing in the case or their attorneys ten days before the same are filed, and any party litigant may, within such ten days, object thereto and request other, different, or additional findings. Nothing herein contained shall prevent the court from shortening the time in which to file objections or request other, different, or additional findings, or prevent the parties to the case stipulating or agreeing to the findings to be entered."

It appears from the record herein that, at the conclusion of the testimony and argument by counsel, the court ruled that the defendant had failed to sustain either of its affirmative defenses, and held that the plaintiff was entitled to recover a judgment for $712.34, with $200 attorney's fees. The attorneys were instructed to prepare their findings, "serve a copy of it upon opposing counsel, mail them to me at Baker, and I will sign and return them for filing." The defendant made no objections to the findings and no request for different or additional findings. This fact would not indicate that it was dissatisfied with the findings as made. In view of the foregoing, reversible error cannot be successfully predicated upon the court's failure to find in accord with the theory of the defendant.

The defendant asserts that the plaintiff's cause of action was not such as to justify the court in giving a judgment for plaintiff's attorney fees. Section 6355, Or. L., as amended by chapter 184, p. 208, General Laws of Oregon 1927, reads:

"Whenever any suit or action is brought in any courts of this state upon any policy of insurance of any kind or nature whatsoever, the plaintiff, in addition to the amount which he may recover, shall also be allowed and shall recover as part of said judgment such sum as the court or jury may adjudge to be reasonable as attorney's fees in said suit or action; provided, that settlement is not made within six months from date proof of loss is filed with the company. * * *"

Note the broad and inclusive language of the statute, " any policy of insurance of any kind or nature whatsoever. " This language is so plain, and its meaning so clear, that construction is neither required nor permitted.

It is contended, among other things, that plaintiff's complaint is defective, in that it fails to allege sufficient facts to authorize a judgment for attorney's fees in this action. Plaintiff alleged:

"That said defendant, although demand has been made upon it therefor more than 6 months prior to the filing of this action, has failed, neglected and refused, and now refuses to pay to plaintiff said sum of $712.34, or any part thereof, and plaintiff has been damaged in the full sum of said $712.34 and interest since November 9, 1926;

"That the sum of $250 is a reasonable sum to be allowed as attorney's fees in this action."

After hearing the testimony, the court found "that defendant, although demand has been made upon it therefor more than 6 months prior to the filing of complaint in this action, has failed, neglected and refused to pay to plaintiff said sum of $712.34, or any part thereof," and allowed an attorney's fee of $200.

The proof clearly shows that the school district, through its clerk, furnished the defendant corporation with proof of loss and made demand for payment of the sum due on the bond. Plaintiff's Exhibit G reads:

"R. F. D. 1, Oswego, Oregon, Sept. 3, 1927.

"Seeley & Company, Portland, Oregon.

"Gentlemen: You will find enclosed herewith a copy of a special audit of the financial transactions of this district by the former clerk, Mr. Russell W. Robertson, who is bonded in the New Amsterdam Casualty Company, for which you are the general agents.

"This audit was made at the request of the board of directors, and shows that the sum of $712.34 was intrusted to Mr. Robertson, for which no returns were made.

"At its last meeting, the board instructed the clerk to advise you of the above, and to make formal demand that your company reimburse this district in the amount above mentioned.

"This shortage occurred during the school year 1924-25, and an early settlement is desired."

Seeley & Co., general agents of the defendant corporation, made no complaint about the insufficiency of the proof of loss, nor did they take any action looking to a settlement.

On October 8, 1927, the plaintiff, through its clerk, again wrote the general agents of defendant corporation as follows:

"Gentlemen: On September 3, 1927, a letter was sent to you under registered number 101 enclosing an audit of the accounts of Mr. Russell W. Robertson, as clerk of this school district, for the year 1924-5, and making formal demand on your company to make good a shortage of $712.34, shown by said audit to have been misappropriated by Mr. Robertson. The receipt of said letter was acknowledged on September 6, 1927, by D. M. Shea, but to date we have received no intimation that anything was being done looking to a settlement of this claim.

"Naturally the Board feels safe if the clerk who handles the funds is bonded in a company with the standing the New Amsterdam enjoys, but cannot understand the delay in adjusting claims for losses when properly presented.

"Thanking you for early attention to this matter, and looking for an early reply, I am,

"Sincerely yours,

"J. J. Story, School Clerk."

The defendant answered this communication on October...