Silver Falls Timber Co. v. Eastern & Western Lumber Co.

• Decision Date: 08 January 1935
• Citation: 40 P.2d 703,149 Or. 126
• Parties: SILVER FALLS TIMBER CO. et al. v. EASTERN & WESTERN LUMBER CO.
• Court: Oregon Supreme Court

40 P.2d 703

149 Or. 126

SILVER FALLS TIMBER CO. et al. v. EASTERN & WESTERN LUMBER CO.

Supreme Court of Oregon

January 8, 1935

In Banc.

Appeal from Circuit Court, Multnomah County; Hall S. Lusk, Judge.

Action by the Silver Falls Timber Company and others against the Eastern & Western Lumber Company. Judgment for plaintiffs and defendant appeals.

Remanded with directions.

This is an appeal by the defendant from a judgment of the circuit court in the sum of $263,207.75, entered upon findings of fact and conclusions of law favorable to the plaintiffs. The plaintiffs are the Silver Falls Timber Company, which conducted extensive logging operations upon 23,840 acres of timberland which it owned in Clackamas and Marion counties upon the west slope of the Cascade Mountains, 20 miles or more southeast of Silverton where its sawmill was located and ten other corporations which had issued to the Silver Falls Timber Company policies of insurance on some of its property damaged by a fire which started September 6, 1929. The defendant is the Eastern & Western Lumber Company, which on September 6, 1929, was conducting extensive logging operations upon its 8,700 acres of timberland adjoining on the north the aforementioned timberland owned by the Silver Falls Timber Company. The findings of fact sustain the complaint and declare that the fire, which destroyed many items of the plaintiff's property, originated on the property of the defendant through its negligence.

John F. Reilly, of Portland (Wilson & Reilly, of Portland, on the brief), for appellant.

Charles A. Hart and Omar C. Spencer, both of Portland (Carey, Hart Spencer & McCulloch and Veazie & Veazie, all of Portland, on the brief), for respondents.

The right of the insurance companies, which are ten of the eleven plaintiffs, to maintain this action as coplaintiffs, in the event the other plaintiff, Silver Falls Timber Company possesses a cause of action, is not questioned by the defendant. We shall hereafter refer to the Silver Falls Timber Company as the plaintiff, and to the Eastern & Western Lumber Company as the defendant.

Since one of the assignments of error is predicated upon an order of the circuit court which overruled the defendant's motion to strike the amended complaint from the files "for the reason that three alleged causes of action are attempted to be stated in said complaint and are not separately stated," or, in the alternative, require the plaintiff to elect "as to whether they will rely upon the allegations of said complaint with reference to alleged common law negligence, or will rely for their recovery upon violation of the statute with reference to the protection of forest lands in the State of Oregon," it seems desirable at this point to consider the merits of this motion.

Omitting mention of all parts of the complaint which are immaterial to a consideration of the above-mentioned motion, that pleading contains the following averments: The defendant, in conducting its logging operations, employed two skidders rigged with lines, blocks, and other paraphernalia, and powered by oil burning steam engines. As a result of the 1928 and 1929 operations, "great quantities of slashings were left by defendant upon its said lands *** and said slashings created and constituted a fire hazard. Defendant was not relieved or excused from the burning of said slashings by order of any fire warden or otherwise. On September 6, 1929, and for several weeks prior thereto, defendant's Skidder Number 1 was being operated by defendant in its logging operations. *** By reason of a long-continued drouth prior to said day, the said forest and timberlands and the slashings and debris from defendant's logging operations and the live, dead and fallen timber and other vegetation thereon were dry and highly inflammable. By eleven o'clock of said day, and thereafter until late in the afternoon, a strong east-to-northeasterly wind was blowing across said lands and at the settings of defendant's said skidders where defendant was then logging; and during said time and at the point of and for a radius of many miles surrounding said logging operations the relative humidity of the atmosphere was below thirty per cent. In the operation of said skidders defendant was lifting and dragging heavy fir logs by means of wire cables running at high speed and under severe and varying tension through steel and iron pulleys, blocks and eyes, and by means of chokers, hooks and other appliances of steel through friction and impact of metals such operations often cause heat and sparks sufficient to set fire to forest debris under the condition of dryness, low humidity and exposure to wind which existed at said place of operation from and after 11:00 o'clock A. M. on said 6th day of September, 1929, and a forest fire once set would under said conditions burn fiercely and spread rapidly; and the continuance of said operations under said conditions involved and produced great and obvious danger that a forest fire would be caused thereby and would spread rapidly and extensively; and defendant well knew of the facts hereinbefore alleged." Continuing, the complaint alleges that defendant, nevertheless, continued its operations; and that about 1:30 o'clock p.m. of September 6, 1929, in operating skidder No. 1, it negligently set fire to the inflammable material adjacent to this skidder. We again quote: "By reason of the failure of defendant to extinguish said fire and defendant's carelessness and negligence in permitting and suffering such fire to burn into and through the forests *** and by reason of defendant's carelessness and negligence in failing to make every possible effort to extinguish said fire and to prevent the spread thereof, said fire traveled and burned from the place where it had been carelessly and negligently set and started by defendant, as aforesaid, and spread on to and burned over the lands of plaintiff. ***" The complaint alleges that defendant was negligent in the following particulars: "(1) While engaged in logging the lands under its control *** it created a fire hazard by the accumulation of slashings resulting from its logging operations on said lands during the years 1928 and 1929. *** (2) From approximately the middle of the morning until between one and one-thirty in the afternoon of September 6, 1929, defendant operated its logging equipment *** when, during said time and at said place and in the surrounding country, the temperature was above seventy degrees Fahrenheit, the relative humidity of the atmosphere was below thirty per cent., a strong wind was blowing, and said Skidder Number 1 and all of the surrounding country, including all of the lands under the control of the defendant, were extremely dry and in a highly inflammable condition. *** (3) Defendant carelessly, recklessly and negligently failed to extinguish or control said fire or to use every possible effort or any reasonable effort so to do *** and negligently and recklessly failed to make any effort to prevent the spread of said fire over defendant's lands toward and upon the lands and property of the Silver Falls Timber Company, and negligently and wilfully suffered and permitted said fire to burn uncontrolled over and through defendant's slashings, brush and woods in the direction of, and to reach and burn the property of the Silver Falls Timber Company. (4) Defendant negligently and carelessly failed to provide adequate or any means of protection from, or to prevent the starting of fires by the friction. *** (5) Defendant carelessly and negligently failed and neglected to have the said steam engine on Skidder Number 1 *** equipped with an efficient steam pump *** and it negligently and carelessly failed to have said steam engine equipped with not less than two hundred feet of hose one inch or over in diameter. *** (6) Defendant carelessly, recklessly and negligently failed and refused to prevent the spread of the fire hereinbefore mentioned. *** (7) Defendant carelessly, recklessly and negligently failed and refused to control said fire and negligently and recklessly failed and neglected to use every possible effort or any reasonable effort to extinguish said fire or to control the same ***, said defendant having knowledge of said fire then burning on the said lands controlled and in the possession of defendant.

***" Further, the complaint alleges that, as a result of the defendant's negligence, the fire spread to the property of the plaintiff, consuming or otherwise damaging the property described in the complaint. The pleading avers that the plaintiff, in endeavoring to prevent the destruction of its property, employed "a great number of men and furnished them with equipment, materials and supplies, and thereby was compelled to and did incur expenses aggregating $11,283.55; that said expenditures were necessary and reasonable." Other items of damages mentioned in the complaint constitute the value of timber, bridges, logging equipment, etc., which the complaint alleges were consumed or damaged by the fire. The concluding averment of the complaint states: "By reason of the facts aforesaid, plaintiffs are entitled to recover from the defendants, Eastern and Western Lumber Company, double the amount of the actual damages sustained through the careless, reckless and negligent acts and omissions of said defendant, as hereinbefore alleged." The pleading demands judgment for $1,026,907.24.

In support of its contention that the above pleading states three causes of action, the defendant argues that the complaint avers a cause of action based upon common-law negligence; another based upon an alleged failure of the defendant to comply with the Forest Protection Act (sections 42-401 to 42-434, Oregon Code...