Sweeney v. Jackson County

• Decision Date: 15 July 1919
• Citation: 182 P. 380,93 Or. 96
• Parties: SWEENEY v. JACKSON COUNTY ET AL.
• Court: Oregon Supreme Court

182 P. 380

93 Or. 96

SWEENEY v. JACKSON COUNTY ET AL.

Supreme Court of Oregon

July 15, 1919

In Banc.

Appeal from Circuit Court, Multnomah County; George N. Davis, Judge.

On petition for rehearing. Motion denied, and former opinion affirmed.

For former opinion, see 178 P. 365.

A. E Reames and George M. Roberts, both of Medford for appellant.

Chamberlain Thomas, Kraemer & Humphreys, of Portland, for defendant respondent.

Loyal H. McCarthy, S. B. Huston, and Carey & Kerr, all of Portland for plaintiff respondent.

BEAN J.

Acknowledging our appreciation of the assistance rendered by the briefs of able counsel upon both sides of this suit, we note that it is earnestly urged upon a petition for rehearing that the court erred in affirming the decree of the trial court for the same amount as there decreed by reason of the fact that this court arrived at its conclusion by a different process from that followed by the trial court.

Our former memorandum in this case indicates that, plaintiff not having appealed from the decree of the lower court, we could not, if the testimony warranted, find for plaintiff in any greater sum than the decree appealed from. We do not think that the appellate court in the consideration of the case under section 556, L. O. L., which provides for a trial de novo upon the transcript and the evidence, is confined to or would necessarily follow the same path of the trial court, or be governed by the same reasoning, or make the same figures in computing the amount due as made in the decree appealed from. The language of the opinions of this court heretofore rendered does not confine a review upon an appeal in an equity suit within such strict limits. In Powers v. Powers, 46 Or. at page 481, 80 P. at page 1059, former Justice Bean uses the following language:

"Much of appellant's brief is devoted to a discussion of the question whether the findings of fact of the trial court are supported by the evidence. Under our statute, on an appeal from a decree in a suit in equity, the cause is tried de novo upon the transcript and evidence accompanying it, and a final decree rendered here, without reference to the findings or conclusions of the trial court."

In Gentry v. Pacific Live Stock Co., 45 Or. at page 236, 77 P. at page 116, the same learned justice said:

"Under our statute, on an appeal from a decree in a suit in equity, the case is tried de novo, and a final decree entered by the appellate court, without reference to the findings of fact or conclusions of law of the trial court."

Whatever our view may be in regard to the evidence in the case as to the amount, we confine the same to the amount found by the trial court. We arrive at the same conclusion as the trial court by a different route, and know of no decision in this state that restricts or hinders such a trial de novo.

In the short time of 13 years that the writer has been engaged on this end of the line of work a more solid record of material testimony, either of such volume or of any length, has never been examined. We were pleased to give it our best thought and most careful attention, employing all the time necessary. This we are aware is not indicated by the memorandum opinion.

Counsel for the county maintain with considerable zeal:

"That if the court shall set aside the award of the highway department, and make a new award, the burden of proving the items upon which such award must be based rested upon the plaintiff; * * * that no evidence whatever of a substantive nature was ever introduced to substantiate a single item of such account," referring to "force account."

This important question was called to the attention of the court at the oral argument of the case, and commented upon by the respective counsel. The length of the record practically precludes a discussion of every point in the case. If we take this one which is so ably and strenuously contended for on behalf of the county, it will illustrate the others to a certain extent.

Referring, first, to some of the issues made in the pleadings relative to the force account work which are illustrative of the remainder, we find in paragraph XVII of the complaint the following:

"That at a certain other point on the line of said highway between stations 392 and 398, heretofore known and referred to between the parties as the 'Siskiyou Curve,' the said state highway engineer made certain substantial changes in the location of said highway and certain substantial alterations in the plans thereof, and in making such changes and alterations failed to furnish to the plaintiff proper stakes or elevations or directions for constructing that portion of said highway, and plaintiff was compelled by direction of said state highway engineer to keep a large force of men on the ground at great expense waiting for directions as to the manner of doing such work, and by reason of such changes, alterations, and delays plaintiff suffered damages in the sum of $804; that at stations 674+90, 526+90, and 615+20 of said highway the plaintiff put in place, under the grade of said highway, strictly in accordance with the plans and specifications and under the direction of said state highway engineer, certain unprotected concrete culvert pipe; that the plans providing for the use of such pipe at said three points were defective for the reason that the pipe specified by the said state highway engineer for such use was not of sufficient strength to support the grade of the highway constructed thereover, and said pipe at each of said three points was crushed by the weight of the fill placed thereon; that thereupon, and after the said fill was so completed, the said state highway engineer directed and required the plaintiff to tunnel through the said highway fill at said three points and construct therein and thereunder at each of said three points a protected concrete culvert; that the work of constructing said three protected concrete culverts was exceedingly expensive on account of the fact that the fill at said points had been completed; that plaintiff was entitled to compensation for constructing said culverts at the prices for force account work so agreed upon between the parties, and at said prices, together with the cost of the material used in such construction, plaintiff is entitled to compensation in the sum of $3,280."

The next paragraph XIX, is as follows:

"That

at various other places along the location of said highway, not hereinbefore described, the said state highway engineer made numerous substantial changes in the location of said highway and numerous substantial changes in the plans thereof, and in making such changes and alterations failed to furnish to the plaintiff proper stakes or elevations or directions for constructing said highway at such points, and plaintiff was compelled by directions of said state highway engineer to keep a large force of men on the ground at great expense, waiting for directions as to the manner of doing such work; that at all points along the line of said highway the said state highway engineer caused stakes to be set indicating the elevations of the completed roadbed of said highway, and said elevations were computed by said engineer with reference to a large number of bench marks which the said engineer had caused to be established along the line of said highway, and which bench marks the said engineer represented to the plaintiff were in agreement one with another; that the said bench marks were in a large number of cases erroneous and not in agreement one with another, and as a result the grade stakes so set for the finished roadbed were erroneous, and the plaintiff was therefore required and directed by the said engineer to change the grade of large portions of said highway after they had been completed in accordance with said stakes; that the plaintiff was entitled to compensation for performing the work described in this paragraph at the prices so agreed upon between the parties for force account work, and at said prices plaintiff is entitled to compensation in the sum of $15,344.25."

In paragraph XXI it is alleged as follows:

"* * * That in accordance with the terms of said contract plaintiff delivered to the defendant county of Jackson on or before the 15th day of each calendar month bills for all the force account work above described performed during the preceding calendar month."

Paragraph XVII is answered in paragraph XIII of the answer as follows:

"That, as to the allegations of paragraph XVII of the complaint, this defendant denies that at a certain, or any, point on the line of said highway between stations 392 and 398, designated in the complaint as 'Siskiyou Curve,' or elsewhere, the state highway engineer made certain substantial, or any, changes in the location of said highway, or certain, or any, alterations in the plans thereof, or that in the making of such, or any, changes or alterations, failed to furnish the plaintiff with proper stakes or elevations or directions for constructing that or any portion of said highway, or that the plaintiff was compelled by direction of said state highway engineer to keep a large, or any, force of men on the ground at great, or any, expense, waiting for directions as to the manner of doing the work, or for any reason, or by reason of any such changes, alterations, or delays the plaintiff suffered damage in the sum of $804, or any other sum, or otherwise, than as hereinafter alleged."

With a further answer which reads:

"Further answering the allegations of paragraph XVII of the complaint relating to work at the Siskiyou Curve, this defendant alleges that the plaintiff did suffer some loss at said point due to changes in location and which were unavoidable, but within the terms of

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