Turlay v. Farmers Ins. Exchange

• Decision Date: 10 September 1971
• Citation: 488 P.2d 406,259 Or. 612
• Parties: Tom C. TURLAY, Jr., Respondent, v. FARMERS INSURANCE EXCHANGE, Appellant.
• Court: Oregon Supreme Court

Page 406

488 P.2d 406

259 Or. 612

Tom C. TURLAY, Jr., Respondent, v. FARMERS INSURANCE EXCHANGE, Appellant.

Supreme Court of Oregon.

Argued and Submitted April, 7, 1971.

Decided Sept. 10, 1971.

Thomas Cavanaugh, Portland, argued the cause for appellant. With him on the brief were Schouboe & Cavanaugh, Portland

Raymond J. Conboy, Portland, argued the cause for respondent. On the brief were John J. Haugh, Donald R. Wilson, and Pozzi, Wilson & Atchison, Portland.

Before McALLISTER, P.J., and DENECKE, HOLMAN, TONGUE, HOWELL and BRYSON, JJ.

HOWELL, Justice.

Plaintiff brought this action for a declaratory judgment seeking a declaration of his rights under the uninsured motorist provision of his automobile policy with the defendant. The cause was tried before the court, and a judgment was awarded to plaintiff. The defendant appealed, and plaintiff moved to dismiss the appeal on the ground that the notice of appeal was filed before entry of the judgment. We denied plaintiff's motion to dismiss with leave, however, to plaintiff to renew the motion in the briefs and oral argument before this court.

On January 30, 1970, the trial court entered a letter opinion deciding the issues in favor of plaintiff. On February 6, 1970, Findings of Fact, Conclusions of Law, and Judgment were tendered by plaintiff. On February 9, 1970, defendant tendered alternate Findings of Fact and Conclusions of Law and Objections to plaintiff's proposed With certain exceptions not material to this case, an appellant is required by ORS 19.026 to file the notice of appeal within 30 days after the entry of the judgment appealed from. In the instant case, while the judgment was signed by the trial judge on February 13, 1970, it was not entered by the clerk until March 18, 1970, which was two days after the defendant had filed its notice of appeal. Consequently, the defendant did not comply with ORS 19.026 and file the notice of appeal within 30 days after Entry of the judgment.

Findings of Fact and Conclusions of Law. On February 13, 1970, the trial court held a hearing on the proposed Findings of Fact and Conclusions of Law submitted by plaintiff and the Objections and alternate Findings of Fact and Conclusions of Law submitted by defendant, and signed Findings of Fact, Conclusions of Law and Judgment in favor of plaintiff. Believing that the judgment signed by the [259 Or. 615] trial judge had been duly entered on the day it was signed, the defendant filed notice of appeal on March 16, 1970, which was within the 30 days required by ORS 19.026. Service of the notice of appeal was made on plaintiff's counsel who advised defendant's counsel that the notice of appeal was premature. According to defendant's uncontroverted affidavit, the defendant then consulted the trial judge 'who advised me that his clerk had not entered the order (judgment) and that he would take whatever steps were deemed necessary to correct the record.' On March 26, 1970, the court signed an order entering the judgment nunc pro tunc as of February 13, 1970.

The question then presented is whether the trial court, after defendant filed the notice of appeal, acted properly in executing a subsequent order entering the judgment nunc pro tunc as of February 13, 1970.

' The office of a nunc pro tunc entry is to make a record of what was previously done, but not then entered; not to make an order now for then, but to enter now for then an order previously made.' Klein v. Southern Pacific Co., 140 F. 213 (C.C.Or.1905). It is the purpose of a nunc pro tunc order to supply an omission in the record of action really had, but omitted through inadvertence or mistake, or to enter an order which should have been made as a matter of course and as a legal duty. Cranston v. Stanfield et al., 123 Or. 314, 319, 261 P. 52 (1927).

While there is authority that the statutory period for appeals cannot be shortened or lengthened by the parties or by a nunc pro tunc order of the court, ¹ some of the cases so holding involved situations where a judgment had never been rendered ² or where the effect of the order is to shorten the statutory time for appeal. ³

In the instant case, however, the trial judge actually rendered his judgment on February 13, 1970. He had before him the plaintiff's proposed findings, defendant's objections and alternate findings, and heard the arguments of counsel before signing the judgment.

All that remained was for the clerk to enter the judgment. The entry of the judgment under these circumstances is a It is true, as the plaintiff argues, that the defendant could have re-filed the notice of appeal and the bond and the designation of record after the judgment was entered on March 18, 1970. However, we believe that the trial court acted properly in executing the order directing the judgment to be entered nunc pro tunc as of February 13, 1970, the date the court rendered the judgment. 'When a judgment has been rendered or order made and the clerk has failed or neglected to enter it of record, the court has the power to thereafter order the judgment or order so rendered or made to be entered nunc pro tunc * * *.' Quartz Gold Mining Co. v. Patterson, 53 Or. 85, 96 P. 551 (1909). See also Davis v. Bar T Cattle Co., 247 Or. 437, 431 P.2d 825 (1967); Haberly v. Farmers' Mut. Fire Rel. Ass'n, 135 Or. 32, 287 P. 222, 293 P. 590, 294 P. 594 (1930); City of Portland v. Blue, 87 Or. 271, 170 P. 715 (1918); Grover v. Hawthorne, 62 Or. 65, 75, 116 P. 100, 121 P. 804 (1912); 1 Freeman, Judgments 231, § 126 (5th ed. 1925).

purely ministerial act. Jones v. Thompson, 177 Or. 650, 654, 164 P.2d 718 (1945).

The motion to dismiss is denied.

ON THE MERITS

Plaintiff filed a complaint for a declaratory judgment seeking a declaration of his rights under the terms of the uninsured motorist provision of his automobile liability insurance policy with defendant. Plaintiff alleged that he was injured as a result of the negligence of the driver of a hit-and-run vehicle; that the hit-and-run driver constituted an uninsured motorist under the terms of his policy with defendant; that he suffered injuries as a result of the accident; and that the defendant refused to pay. Plaintiff requested a judgment in the amount of $5,000, plus $3,500 as reasonable attorney fees.

In a trial before the circuit court without a jury, a judgment was entered in favor of the plaintiff for $5,000, plus $1,000 attorney fees. Defendant appeals.

Generally, the defendant contends that the court erred in finding that a hit-and-run vehicle was involved in the accident in question; that plaintiff failed to give defendant notice of the accident as required by the policy; and that plaintiff's cause of action is barred by certain time provisions contained in the policy and by the two-year tort statute of limitations, ORS 12.110.

The plaintiff's policy with the defendant contained the standard provision relating to hit-and-run vehicles as uninsured vehicles and defining a hit-and-run vehicle as follows:

"Hit-and-run vehicle' means a motor vehicle or trailer which causes bodily injury to an insured arising out of physical contact of such motor vehicle or trailer with the insured or with an automobile which the insured is occupying at the time of the accident, provided (a) there cannot be ascertained the identity of either the operator or the owner of such 'hit-and-run motor vehicle'; (b) the insured or someone on his behalf shall have reported the accident within 24 hours to a police, peace or judicial officer or to the Commissioner of Motor Vehicles, and shall have filed with the Company within 30 days thereafter a statement under oath that the insured has a cause or causes of action arising out of such accident for damages against a person or persons whose identity is unascertainable, and setting forth the facts in support thereof; and (c) at the Company's request, the insured makes available for inspection the automobile which he was occupying at the time of the accident.'

The evidence disclosed the following facts: On November 10, 1965, plaintiff was driving his vehicle south on Interstate 5 in Portland. Plaintiff was in the inside or left-hand lane of the three lanes for southbound traffic. Traffic in plaintiff's lane came to a stop, and while plaintiff was stopped, he was rear-ended by a car driven by James Starr. Plaintiff's car was forced into the car preceding plaintiff and was also damaged in the rear by the impact from the Starr vehicle. When plaintiff and Starr were exchanging information, Starr stated that he had been rear-ended by another vehicle, causing him to run into plaintiff. Plaintiff asked Starr, 'Well, if you got struck in the rear, why didn't you get the man's name and address?' Starr made no reply. On examining the rear of the Starr vehicle, plaintiff saw no evidence of damage, and Starr did not point out any damage. Because of damage to its front end, the Starr vehicle was not able to move; other traffic pulled around the car and moved forward.

The following day plaintiff notified defendant of the accident but made no mention of a hit-and-run vehicle. Neither did he file a hit-and-run report with the police within 24 hours or report to the company within 30 days that he had a cause of action for damage against a person 'whose identity is unascertainable' as required by the policy. Plaintiff believed Starr to be the responsible party in the collision.

The defendant paid for the repairs to plaintiff's vehicle, paid plaintiff's medical expenses, and subrogated its collision claim against the Starr vehicle. On February 3, 1966, in response to a questionnaire sent him by defendant, the plaintiff gave the following answer to a question regarding whether Starr had made any statement after the accident:

'Starr stated he saw my brake lights and braked and another car hit him but viewing rear of his car saw no indication of same.'

The defendant made virtually no investigation of the accident,...