State v. Gourley

ON REHEARING

*384 Geddes, Felker, Walton & Richmond, of Roseburg, for the petition.

On Respondents Petition foe Reheaeing

BRAND, J.

The defendants Gourley petition for a rehearing upon the ground that the “Amended Complaint fails to state facts sufficient to constitute a cause of action against these petitioning Respondents in that it affirmatively alleges that the Respondent, Empire Mill-work Corporation, was the owner, operator or person in possession of the lands upon which the fire is alleged to have started and burned.” The contention *385 appears to "be that there is no allegation that the defendants Gourley come within the purview of the statute which provides that “The owner, operator and person in possession of land, on which a fire exists, or from which it may have spread, or either or any of them, * * * is required to make every reasonable effort to control and extinguish * * *.” OCLA, §107-212. (Emphasis ours). The argument seems to be that the allegation above-quoted concerning Empire Millwork Corporation as the owner, operator or person in possession amounted to an allegation that the defendants Gourley could not be charged under the same statute as operator or party in possession. First, we think Empire might be the owner, as the evidence proved, and the defendants Gourley could be the operators, and, for that matter, both groups of defendants might be alleged to be in possession. Second, the complaint alleges that the defendants Gourley “were actively engaged in a logging operation * * This was a sufficient allegation that they were “operators”, and operators are expressly charged with the duty to make every reasonable effort to extinguish the fire. For reasons set forth in our opinion, we deem it highly questionable whether there was any necessity to allege that the Gourleys were both operators and persons in possession.

We have not overlooked the general rule that failure of a complaint to state a cause of action may be raised for the first time in this court. But that rule is not determinative of this question. It is equally well-established that in the absence of objection to the complaint in the court below, though the cause of action be imperfectly stated, the complaint will be considered sufficient on appeal. Holmberg v. Pruden *386 tial Savings & Loan Ass’n, 130 Or 1 , 278 P 943 ; Murray v. Lamb, 168 Or 596 , 124 P2d 531 ; Nicholson v. Jones, 194 Or 406 , 242 P2d 582 .

We also have in mind the multitude of eases which hold that where the sufficiency of a pleading is not appropriately questioned below, all intendments are resolved in its favor and it will be liberally construed. Under the circumstances of this case we hold that the belated demurrer, presented for the first time in this court, must be overruled.

Even if we should hold that the complaint omitted a material allegation, namely, that defendants were both operators and persons in joint possession, we would not be required to reverse our previous decision. A fact apparently overlooked by counsel is that in the reply filed by the plaintiff to the answer of defendants Gourley it is expressly alleged that the defendants Gourley “were the operators and party in possession of forest lands described as follows: * * V’ (Italics ours.) There was no objection to the filing of this reply.

We now quote from the authorities, as follows:

“* * * If the controversy raised by the reply had been stated as new matter in that pleading and not as a denial of the averments of the answer, there would have been no departure, but a mere enlargement of the averments of the complaint: * * Skinner v. Furnas, 82 Or 414 , 161 P 962 .

“* * * Ordinarily plaintiff cannot amend his petition by a reply or a supplemental petition, but, in the absence of any objection on the part of defendant, plaintiff’s reply or supplemental petition maybe considered as an amendment.” 71 CJS 1168, Pleading, § 589 b.

*387 “It is a generally accepted proposition of law that statements in the replication or reply cannot supply material allegations which should have been made in the declaration or complaint. But where the defendant waives allegations of curative matter in the plaintiff’s responsive pleading by failure to object to it, the plaintiff’s cause of action may be tested by his complaint and his reply, and the latter will be taken as supplying omissions from the former. * * *” 41 Am Jur 572, Pleading, § 402.

“* * * Another statement of the doctrine is that where the parties have attempted to join an issue to be tried, and it has been tried, however, defective in form the pleadings may be a verdict for the one or the other will be held to cure such defective pleadings, that is, will cure them as to their form, and supply all omitted necessary averments concerning essential facts relied on, provided the proof or admission of such facts was necessarily considered before the verdict was rendered, for the verdict must be assumed upon proof of facts which justified it. * * *” 41 Am Jur 573, Pleading, § 404.

Now let us see if the defendants G-ourley waived any objection to the trial of the case against them on the merits. In their brief the defendants say:

“The sole issue is as to whether or not the defendants respectively made every reasonable effort to control and extinguish the fire immediately when its existence came to their knowledge and continued such efforts until the fire was extinguished.”

We also observe that there was offered competent evidence that defendants Gourley accepted responsibility for suppression of the fire and they also pleaded that they made “every reasonable effort to suppress the fire”, thus raising the very issue which was submitted to the jury. The petition for rehearing should be denied.

*388 It has been suggested that the following excerpt from our former opinion is either ambiguous or misleading. We said:

“Defendants had a duty not only to use the manpower and equipment available to them, but also to have available, or to procure such manpower and equipment as was reasonably required for the job.”

It seems to be feared that from this sentence we intended to say that a person charged with duties under the statute must at all times have available on the ground or close by, sufficient manpower and equipment to successfully handle a fire, i.e., to extinguish it.

The entire tenor of our opinion was that “the job” imposed by statute is to make every reasonable effort to extinguish a fire and that what constitutes every reasonable effort depends upon all of the circumstances. If, under all of the circumstances, a given amount of equipment and manpower was reasonably required of the particular owner or operator, he could not excuse himself for failure to have or procure the required amount. In a word, a timber owner or operator could not send a boy to do a man’s job, and then claim that he had made every reasonable effort. We think our opinion was not subject to any other interpretation.

The petition for rehearing is denied.