Smith v. Day

• Decision Date: 16 August 1901
• Citation: 39 Or. 531,65 P. 1055
• Parties: SMITH v. DAY et al.
• Court: Oregon Supreme Court

65 P. 1055

39 Or. 531

SMITH v. DAY et al.

Supreme Court of Oregon

August 16, 1901

On rehearing. Affirmed.

For former report, see 64 P. 812.

WOLVERTON, J.

This cause is upon a rehearing. We held on the first hearing that for the purpose of determining whether a demurrer to the complaint upon the ground that the action had not been commenced within the time limited by the Code was well taken it was competent for the court to take into consideration the indorsement of the sheriff upon the summons in determining when the action was commenced. The weight of judicial utterance seems, however, to be against this position, the view seeming to prevail that the inquiry must be confined to the face of the complaint. Smith v. Holmes, 19 N.Y 271; Lambert v. Manufacturing Co., 42 W.Va. 813, 26 S.E. 431; Zaegel v. Kuster, 51 Wis. 31, 7 N.W. 781; Smith v. City of Janesville, 52 Wis. 680, 9 N.W 789; Benedix v. Insurance Co., 78 Wis. 77, 47 N.W 176. The doctrine of those cases seems highly technical, and does not appeal strongly to reason, but we feel constrained in deference to precedent and the weight of authority, to recede from our former holding in that regard.

This renders it necessary to determine another feature of the case, and for that purpose a further statement is required. The navigation company had received the plaintiff as a passenger on board of one of its boats, engaging to safely carry him from The Dalles to Portland and return, for which transportation he paid three dollars. The defendants J.G. and I.N. Day were engaged in blasting rock in the bed of the Columbia river at the Cascade Locks, and, while the boat was lying at the wharf, they, through their agents and employés, set off a blast of giant powder, or other powerful explosive, by reason whereof fragments of rock were cast upon and through the roof of the boat's cabin whereby the plaintiff was struck and injured. It is alleged that the Days were negligent in exploding the blast, well knowing that the boat was lying at the wharf, having passengers on board; and that the navigation company was negligent in allowing the boat to be at the wharf, well knowing that it was the usual hour at which the Days discharged their blasts. The demurrer interposed to the complaint assigned as a ground therefor, among others, that two causes of action were improperly united. The filing of a demurrer based upon the grounds that the court could not properly consider except upon the hypothesis that it had jurisdiction of the cause and the person must be treated as a general appearance, which waived all irregularities as to the service of the summons, and gave jurisdiction of the navigation company as effectually as if it had resided and been duly served in Multnomah county, where the action was begun; and this is the case, although it is stated in the demurrer that it was filed without intending to waive irregularity of service or want of jurisdiction. Belknap v. Charlton, 25 Or. 41, 34 P. 758. It is so well settled that an action on contract cannot be united with one arising ex delicto that it does not require a citation of authorities to support the proposition. Two or more tort feasors may be sued jointly when they have all concurred by joint design or common act or negligence to produce the injury complained of but where the parties have acted separately and independently of each other, without concert, or by common purpose, although the injury may be a common result to which the acts of each contributed, their liability is not joint, and a joint recovery cannot be had. 1 Suth.Dam. §§ 140, 141; Dahms v. Sears, 13 Or. 47, 11 P. 891; Cooper v. Blair, 14 Or. 255, 12 P. 370; Bard v. Yohn, 26 P. 482; Klauder v. McGrath, 35 Pa. 128; Coal Co. v. Richard's Adm'rs, 57...