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signable. Defendants, in an effort to over-that matters once litigated and decided by a „hrow plaintiff's onset, allege facts which court of competent jurisdiction should not they maintain constitute (1) laches; (2) res be stirred again. adjudicata. A decree was entered for de-  Well might we close this case here, fendants.
but we will comment on another defense  The legal effect of the deed and the which must necessarily operate as an inrights acquired by the grantees thereunder superable barrier to further litigation and; were determined by this court in Bingham that is, the defense of a stale equity. We acv. Salene, 15 Or. 208, 14 Pac. 523, 3 Am. knowledge the dogma that no arbitrary rule St. Rep. 152; Salene v. Isherwood, 55 Or. exists for determining when a matter be263, 106 Pac. 18; and Isherwood V. Sa- comes stale, and that the question of laches is lene, 61 Or. 573, 123 Pac. 49, 40 L. R. A. to be decided upon the particular circum(N. S.) 299, Ann. Cas. 1914B, 542. The ques- stances of each case.
Therefore a careful tions decided in the first case and laid to scrutiny of the record becomes obligatory rest were: That the instrument conveyed to and reveals that of the four parties to the the grantees, their heirs and assigns forever, deed, all, save plaintiff, have died; that the the exclusive right and privilege to shoot, time intervening between the first case and kill, and take any wild fowl upon and in this, the last one, has covered a period of any of the lakes, sloughs, or waters situated about 28 years. These two circumstances in upon the land defined in the deed with the themselves are sufficient to inspire a court of right of ingress and egress for such purposes equity to look with disfavor upon this suit to and from the waters mentioned.
and to deny the application for relief. NepFor the purpose of showing the extent of pach v. Jones, 20 Or. 491, 26 Pac. 569, 849, 23 the matters adjudicated, we quote from Mr. Am. St. Rep. 145; Wilson v. Wilson, 26 Or. Chief Justice Lord in Bingham v. Salene, 15 257, 38 Pac. 185; Froebrich v. Lane, 45 Or. Or. 216, 14 Pac. 526, 3 Am. St. Rep. 152: 13, 76 Pac. 351, 106 Am. St. Rep. 634; Wills
"We come now to consider the defenses of v. Nehalem, 52 Or. 70, 96 Pac. 528. the defendants. Substantially, they are divisible  We observe in this case that the abinto two parts; and, briefly, are: (1) That the stract does not contain any assignments of defendants, being unable to read and write, signed the deed, relying upon the representations error. Rule 12 of this court (56 Or. 621, of the plaintiffs that its provisions only created 117 Pac. xi) provides: a personal license to come down to the farm of the defendants to shoot and hunt wild fowl; I will be examined or considered, except those go
"On the hearing in this court, no questions and (2) that at the time the deed was executed, ing to the jurisdiction of the court, or when the plaintiffs were acting as the attorneys for the pleading does not state facts sufficient to the defendants, and availed themselves of the constitute a cause of action or defense, or those confidence arising from that relation to procure arising upon the assignments of error, as contheir consent to grant them such privilege on tained in the printed abstract.” the representations stated. It is sufficient to say, without going much in to detail, that we do
An "assignment of error" is in the nature not think that either of these defenses are sus- of a pleading, and its purpose is to point out tained by the evidence."
the specific errors alleged to have been comThus do we find the very matters suggest- mitted by the trial court in order to enable ed by this litigation discussed and decided the appellate court to see on what point a adversely to plaintiff's contention. The judg- reversal of the case is asked, and it is therement rendered therein is a finality as to the fore, not only of the utmost importance, but claims in controversy, not only as to every an indispensible prerequisite to the considmatter which was offered to defeat the origeration of a cause, that the errors claimed inal conveyance, but as to other admissible be specified. matters which might have been offered for [ 4-6] An appellant omitting to do this, the that purpose. The law as to the conclusive-judgment or decree of the lower court will ness of a judgment is clearly stated by the be affirmed; though this general statement Supreme Court of the United States in Crom- must be qualified in these particulars: Where well v. County of Sac, 91 U. S. 351, 24 L. the appeal is taken from a decree entered on Ed. 195, and the distinction between the the pleadings, formal assignments of error effect of such a judgment as a bar or estop- are not imperatively necessary, though it is pel in the same action and as an estoppel or better practice to have them (Neppach v. bar to another action is most lucidly stated. Jones, 28 Or. 286, 39 Pac. 999, 42 Pac. 519);
This court has decided over and over again nor will the appeal be dismissed for lack of that a judgment is conclusive not only upon assignments of error where it sufficiently the questions actually contested and deter- appears that the error complained of is the mined, but upon all matters which might entering of a certain order which is fully have been litigated and decided in the pro- set out with sufficient of the record to make ceeding, unless the failure to urge the point it intelligible (Medynski v. Theiss, 36 Or. in question was caused by the adversary's 397, 59 Pac. 871); and, where the assignfraud and was without negligence of the ments were inadvertently omitted, they may losing party. Belle v. Brown, 37 Or. 588, 61 be filed as a supplemental abstract, where Pac. 1024; Krebs Hop Co. v. Livesley, 55 Or. respondent has not been affected by the 227, 104 Pac. 3, and cases therein mentioned. omission (Fleischner V. Bank of McMinn
Pac. 345; Skinner's Will, 40 Or. 571, 575,, are to be construed favorably to the insured
[Ed. Note. For other cases, see Insurance,
5. INSURANCE (8 156*)-CONSTRUCTION OF POL-
ICY-ENFORCEMENT—CONTRACTS FOR BENE-
FIT OF THIRD PERSON.
ates no privity between the insurer and an em-
[Ed. Note.-For other cases, see Insurance,
Bean, J., dissenting.
Department No. 1.. Appeal from Circuit
Action by Jacob Scheuerman against S.
Mathison and another, copartners doing busi-
See, also, 67 Or. 419, 136 Pac. 330.
George B. Guthrie, of Portland (Wilbur &
the brief), for appellant. R. F. Peters, of
RAMSEY, J. The Pacific Coast Casualty
On July 10, 1912, he commenced an action
said company forthwith to make a certificate
belonging to said firm of Mathison & Ander-
The said garnishee
its hands belonging to the said defendants.
return upon said writ of execution, stating
As contracts of insurance are usually pre- upon said company, and that said company
*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
cover the costs of said appeal, as required by law, stated, he was in the employment of the de- preme Court, the said garnishee paid the costs fendants, and, at that time and prior and of said appeal; that all of said proceedings subsequent thereto, the defendants were in- were taken in the name of the defendants, but
that the defendants had no charge or control sured with the Pacific Coast Casualty Com- over said proceedings, and all of said proceedpany, the garnishee, and, by the terms of the ings were under the exclusive control and charge policy of insurance issued by said company of the said garnishee." to the defendants, said company agreed to The sixth finding of fact that the garnishee idemnify the defendants for any loss they requested and the trial court refused to find might sustain by reason of injuries to any of is as follows: their employés. Immediately after the plain- "That immediately upon the plaintiff being intiff commenced said action for damages jured, the said garnishee, through its attorneys against said defendants, the said company, and not otherwise, took charge and control of
and agents, as provided in said liability policy, through its attorneys, took charge of said the case and all negotiations and proceedings case for said defendants, and filed the answer therein, and upon this action being commenced, therein for the defendants, and conducted said garnisbee, through its attorneys, as provid
ed in said liability policy, and not otherwise, said cause for the defendants until the final and at its own expense, took charge and conjudgment therein was obtained, as stated su-trol of the defense of said action, and conducted pra. The plaintiff caused a writ of execu- the defense of the trial of said action in this tion to be issued upon said judgment and bility' policy, and not otherwise, took an appeal
court, and thereafter, as provided in said liacollected thereon only the sum of $124, and from the judgment rendered in this court in said said sum of $124 is all that the defendants cause to the Supreme Court of the state of
Oregon.' have paid on said judgment. The garuishee, said casualty company, has not paid the de
The garnishee in its answer set out in full fendants or either of them any part of the the policy of insurance upon which this prosaid judgment recovered by the plaintiff ceeding is based. We set out only the poragainst the defendants for said personal in- tions thereof bearing on the questions raised juries suffered while in their employment, as on this appeal. The portions of said policy stated supra. After alleging inter alia sub- referred to are as follows: stantially the facts related supra, the plain-Pacific Coast Casualty Company of California.
"In consideration of the warranties herein tiff, by his complaint, demanded judgment and of twenty-five and 00/100 dollars ($25.00) against said company, as garnishee, for the deposit premium) estimated premium, the Pasum of $1,604.38 and interest, etc. The plain-cific Coast Casualty Company, of San Francistiff's complaint and proper interrogatories co, California, herein called the company, herewere served on said company, as garnishee, Hood Brewery Company of the county of Mult
by insures Mathison & Anderson, and/or Mount Said company answered said complaint nomah, state of Oregon, hereinafter called the and interrogatories, admitting portions, and assured, against loss and expense arising from denying other parts thereof, and setting up count of bodily injuries or death accidentally
claims upon the assured for damages on acnew matter. The reply denied parts of the suffered or alleged to have been suffered during new matter of the answer, and set up new the period of this policy by any employé of the matter.
assured by reason of the prosecution of the
work described herein. The cause was tried by the court without
"If a suit is brought on account of an accia jury, and findings and a judgment were dent, the assured shall forward immediately to rendered for the plaintiff, and against the the company, or to its duly authorized agent, garnishee, for the amount demanded by the every process and paper served on him. The
company, at its own expense, will settle or decomplaint. The garnishee appeals, and con- fend said suit, whether groundless or not; the tends that the court below erred in its sixth moneys expended in said defense shall not be infinding of fact and in refusing to find the cluded in the limits of the liability fixed under sixth finding of fact requested by the gar- liability, nor interfere with any negotiation for
this policy. The assured shall not assume any nishee, and in finding, as a conclusion of law, settlement or any legal proceeding, nor incur that the plaintiff was entitled to a judgment any expense por settle any claim except at his against the garnishee for the sum named own cost,, without the written consent of the
company therein, and in not finding that the garnishee "L. No action shall lie against the company was entitled to judgment against the plain for any loss or expense under this policy unless tiff, etc.
it shall be brought for loss or expense actually
sustained and paid in satisfaction of a final The sixth finding of fact to which the gar- judgment, within ninety days from the date of nishee objects is as follows:
sáid judgment and after trial of the issue." "That immediately upon the plaintiff being in
There appears to be no controversy as to jured, the said garnishee, through its agents and the material facts, but the parties differ attorneys, took exclusive charge and control of widely as to the effect of those facts, or as the case, and all negotiations and proceedings therein, and, upon this action being commenced, to the rights of the parties on the facts, said garnishee, through its attorneys, and at its found by the court below. The trial court own expense, took exclusive charge and control found that the copy of the policy annexed to of the defense of said action, and conducted the the answer is a true copy of the policy that defense of the trial of said action in this court, and thereafter, upon its own initiative, took the garnishee issued to the firm defendants, contents of that instrument. The firm de- , begun, could have maintained an action fendants held that policy at the time that against the said company on the said policy the plaintiff received the personal injuries of insurance. If the assured could not have referred to supra, and he was in the em- maintained such an action, the plaintiff, as ployment of said firm when he received those an 'attaching creditor, is not entitled to a injuries. He obtained the judgment against judgment against the garnishee, the casualty said firm mentioned above on account of said company. We conclude that this is the law. injuries, and garnished the casualty com- [2-4] 2. Sections 715 and 716, L. 0. L., depany for the amount supposed to be due from clare the rules by which we are to be guided that company to the defendants by reason of in construing this policy of insurance. The the injuries that he had received. Said poli- former of said sections is: cy undoubtedly covered said injuries.
"In the construction of a statute or instru 1. In order that a creditor may main-ment, the office of the judge is simply to ascertain a garnishment proceeding there must tain and declare what is, in terms or in subbe a subsisting right of action at law by the been omitted, or to omit what has been insert
stance, contained therein, not to insert what has defendant in his own right against the gar- ed; and where there are several provisions or nishee, and a garnishee cannot be held liable particulars, such construction is, if possible, to to garnishment, unless it is shown that he is be adopted as will give effect to all." indebted to the defendant at the time of the Said section 716 is as follows: commencement of the garnishment proceed
"In the construction of *
an instruings. 20 Cyc. pp. 983, 984; Case v. Noyes, 16 ment the intention of the parties, is to be pur
sued, if possible; and when a general and a parOr. 329, 19 Pac. 104; 0. R. & N. Co. v. Gates, ticular provision are inconsistent, the latter is 10 Or. 514; Drake on Attachment (7th Ed.) paramount to the former. So a particular in458; Waples on Attachment (2d Ed.) 8 472. tent shall control a general one that is inconWaples on Attachment (2d Ed.) 8 472, says,
sistent with it.” inter alia:
Neither courts of law nor of equity have “Standing in the defendant's place, the plain the right or power to make contracts for tiff can have no greater rights than he, had parties, or to alter or amend those that the the garnishee been sued by the defendant. On the other hand if the garnishee denies indebted parties have made. It is the intention of the ness, he has the same rights of defense, and no parties, manifested by their words, and not more nor less, than if sued by his creditor. the whim of the court, that must be the guide The proceeding may therefore be called a suit." in construing contracts made by the parties
Drake on Attachment (7th Ed.) 8 458, says: thereto. In some instances, parties without "A fundamental doctrine of garnishment is exercising due caution, sign contracts that that the plaintiff does not acquire any greater are not in all respects reasonable or fair; rights against the garnishee than the defendant himself possesses. When, therefore, the attach- but when they execute such contracts, they ment plaintiff seeks to avail himself of the rights are, in the absence of fraud, bound by them. of the defendant against the garnishee, his re- It is our office to ascertain and declare what course against the latter is limited by the ex- is the meaning of this policy of insurance. tent of the garnishee's liability to the defendant. This principle is subject, however, to an excep- As contracts of insurance are usually pretion, where the garnishee is in possession of ef- pared by the companies that issue them, they fects of the defendant under a fraudulent trans-are to be construed favorably to the assured ant would have no claim against the garnishee, when their provisions are ambiguous. But yet a creditor of the defendant can subject the the terms of this policy are not ambiguous, effects in the garnisher's hands to his attach- and it is our office to determine what the ment.”
parties thereto meant by the provisions set In Case v. Noyes, supra, the court says:
forth therein. “The plaintiff by this proceeding against
This policy took effect on April 10, 1912, Noyes as garnishee is endeavoring to assert the rights of the Seaside Packing Company against and the plaintiff was injured about May 27, him, and he can assert no other rights unless it 1912. Mathison & Anderson, the assured, appeared that the garnishee had effects of the paid for the policy a premium of $25. The defendant which he held fraudulently."
casualty company, 'in consideration of reIn Burns v. Payne, 31 Or. 100, 103, 49 Pac.ceiving from said firm said sum of money, 884, 885, the court says:
insured said firm"He (the attaching creditor) takes the shoes against loss and expense arising from claims and asserts the rights of the defendant against upon the assured for damages on account of the garnishee. 'He sues for property or cred- bodily injuries or death accidentally suffered or its in his own name, but upon the cause of ac- alleged to have been suffered during the period tion acquired by such legal subrogation.'"
of this policy by any employé of the assured by It is a cardinal principle of the law relat- reason of the prosecution of the work describing to garnishments that the plaintiff there-ed herein.” in cannot, as a general rule, acquire any The insurance is against claims for damgreater rights against the garnishee than the ages sustained or alleged to have been susdefendant in the attachment case possesses. tained by any employé of the assured in the In this case, in order that the plaintiff may prosecution of the work described in the be entitled to a judgment against the gar- policy. Another paragraph of the policy renishee, the casualty company, he must show quires the assured, when sued by any perthat the assured, Mathison & Anderson, at son on account of an accident, to forward to the time that the garnishment proceeding was the company immediately every process or paper served on the assured, and the com-, vious meaning of the contract. It contains pany agrees, at its own expense
no ambiguity on this point. "to settle or defend said suit, whether ground-  In order, therefore, that the plaintiff less or not; the moneys expended in said de- may be entitled to a judgment against the fense shall not be included in the limits of the casualty company, as garnishee, it is necesliability fixed under this policy. And the assured shall not assume any liability, nor inter-sary for him to show that he obtained a final fere with any negotiation for settlement or any judgment against 'the assured, Mathison & legal proceeding, nor incur any expense or set. Anderson, and that the assured actually paid tle any claim, except at his own cost, without said judgment or a part thereof.
, the written consent of the coinpany."
It was This provision of the policy binds the com- shown that he had obtained a final judgment pany, at its own expense, either to settle or against the assured, and that $121, had been defend any action for damages, and it in- | paid on said judgment by the assured. The hibits the assured from assuming any lia- seventh finding of fact states that that bility for any claim, or interfering with nego- amount had been collected by a writ of extiations for the settlement of any claim, or ecution upon said judgment and that it was from settling any claim, except at their own applied thereon. It is obvious that there is expense, without the written consent of the no privity between the plaintiff and the garcompany. This provision gives the company nishee. The company has no contract with full control of all legal proceeding brought the plaintiff. The policy was obtained for against the assured for damages, and pre the benefit of the assured and not their emvents the assured's settling or paying any ployés. The company made no promise for claim prior to judgment, except at their own the benefit of the plaintiff. expense, without the written consent of the In Ford v. Ætna Life Ins. Co. of Hartford, company. The company has the right to 70 Wash. 29, 126 Pac. 69, decided by the settle claims before judgment or to litigate Supreme Court of Washington, a part of the them, but the assured cannot, except at its syllabus is: own expense, settle or pay any claim before
"A policy by which insurer agrees to indemit is reduced to judgment, unless the com- nify assured against loss from claims for per
sonal injury suffered by any one not employed pany assents thereto. This provision was in- by assured by reason of assured's business, and serted in the contract to give the company which provides that if action is brought against full control of all settlements prior to judg assured on a claim covered by the policy he shall
notify insurer, and it will defend in the name ment and to enable the company to contest and on behalf of assured, and that no action the claims in the courts as far as it should shall lie against insurer to recover for any loss desire to do so. The said provision of the under the policy, unless brought by assured for contract is to be construed in connection with loss actually sustained and paid in money by
him after trial, indemnifies only against loss acparagraph L thereof, which is as follows:
tually sustained and paid by assured in money, "No action shall lie against the company for and not against liability. *
Plaintiff by any loss or expense under this policy unless it garnishment gets no better right than his debtshall be brought for loss or crpense actually sus- or has to the debt garnished. tained and paid in satisfaction of a final judgment, within ninety days from date,, of said or. 283, 288, 56 Pac. 1096, 1097 (48 L. R. A.
In Fenton v. Fidelity & Casualty Co., 36 , judgment, and after trial of the issue."
Or This paragraph of the contract expressly 770), the court says: provides that no action shall lie against the ties between a contract of indemnity against
"There is a distinction made by the authoricompany for any loss or expense under the liability for damages, and a simple contract of policy, except for loss or expense actually indemnity against damages. In the former case, sustained and paid in satisfaction of a final it has very generally been held that an action judgment, and after trial of the issue. The niay be brought and a recovery bad, as soon as
the liability is legally imposed, while in the latonly insurance created by the policy is ter there is no cause of action until there is acagainst “loss and expense"; and paragraph tual damage. * * * If, therefore, the policy "L” provides that no action shall lie against upon which this action is based is a mere conthe company for “loss or expense" unless it tract of indemnity, the payment by this mill
company (the assignor of the plaintiff) of the shall be brought for "loss or expense ac- liability incurred by it for the services of the tually sustained and paid in satisfaction of a plaintiff is a condition precedent to the right final judgment," after trial of the issue, with- of recovery.' in 90 days from the date of the judgment.
In Finley v. United States Casualty ComBy this clause it is provided, that an action pany, 113 Tenn. 592, 83 S. W. 2, 3 Ann. Cas. against the company will lie only for loss 962, a part of the syllabus is: and expenses that have been paid in satisfac
“Agreements in an employer's liability policy tion of a final judgment obtained after a shall immediately forward the process to the
that, if suit is brought against the assured, he trial of the issue of damages. If said pro- insurer, which will defend against or settle the vision is valid, it necessarily follows, that claim, do not, when considered with a provision the company is not liable to an action on the of the policy declaring its purpose to be inpolicy until a final judgment has been ob-bility for damages,' and another agreement that
demnity to the assured 'against loss from liatained against the assured by a person in- no action shall lie against the insurer in referjured, and the assured has paid all or some ence to any loss under the policy unless brought portion of said judgment, and such action by the assured himself to reimburse him for pay
in , can be maintained for only the amount ac. der the policy one of indemnity against liabili