Union Assur. Soc. v. Oregon-Washington R. & Nav. Co.

RUDKIN, Circuit Judge (after stating the facts as above). If the case presented by the amended complaint was one sounding in tort, the ruling of the court on the objection to testimony was clearly right, as a payment made on account of the detour agreement would not constitute an admission of liability on account of negligence. The plaintiff in error contends, however, that the amended complaint stated two causes of action, or two grounds of recovery, one based upon contract, and the other upon tort, and that, inasmuch as there was no demurrer for misjoinder and no motion to require an election, it was entitled to offer testimony and go to the jury upon either theory, or both. With this contention we are unable to agree. Under the laws of Oregon (Olson’s 1920, § 94) certain causes of action may be united in the same complaint, but the causes so united must be separately stated, and contract and tort cannot be joined. An objection for misjoinder is waived, if not timely made; but the amended complaint in this case did not purport to state two causes of action, nor did it, in fact, state two causes of action. The reference in the amended complaint to the detour agreement was merely incidental to- the main cause of action stated, and no cause of action was stated for breach of that agreement. Had the insured brought suit against the defendant in error to recover damages under the detour agreement, a breach of that agreement would be an essential part of its cause of action, and the same rule applies where the action is brought by an assignee. Here no breach was alleged, and' consequently no cause of action ex contractu was stated. For these reasons the court below did not err in holding that the amended complaint stated a cause of action in tort only, and the judgment is affirmed.