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Howard v. Sloan

December 29, 1972

HOWARD, APPELLANT,
v.
SLOAN ET AL, RESPONDENTS



Appeal from Circuit Court, Multnomah County. Patrick E. Dooley, Judge.

Raymond J. Conboy, Portland, argued the cause for appellant. With him on the brief were Pozzi, Wilson & Atchison, and Brian L. Welch, Portland.

Fred Miller, Portland, argued the cause for respondent Sloan. On the brief were John J. Higgins and Black, Kendall, Tremaine, Boothe & Higgins, Portland.

Frank H. Hilton, Jr., Portland, argued the cause for respondent Hurrle. With him on the brief were Hutchinson, Schwab, Burdick & Hilton, Portland.

L. Guy Marshall, Portland, argued the cause for respondent Bennett. With him on the brief were Marshall & Schwabe and Peter A. Schwabe, Jr., Portland.

Roger Rose, Portland, argued the cause for respondent Herndon. On the brief was Atma Singh Mann, Portland.

In Banc. Tongue, J.

Tongue

This is an action for personal injuries suffered by plaintiff as he was driving by defendants' building at the time of an explosion of dynamite in its basement. Plaintiff's complaint alleges that defendants were responsible for the explosion. Plaintiff appeals from a judgment of involuntary nonsuit, based upon a holding by the trial court that plaintiff's evidence was insufficient. We affirm.

The building involved in this case was the Helm Building in Portland. At the time of the explosion it was owned by a joint venture, including defendant Sloan, defendant Bennett and Donald E. Hurrle, who was deceased at the time of trial and whose estate was represented by defendant Dorothy Hurrle as its personal representative. Defendant Herndon, an attorney, was not a member of the original joint venture, but had been a friend of Hurrle for some time and had an oral agreement with him prior to the explosion under which Herndon later received a portion of Hurrle's interest in the building. Herndon was also a tenant in the building.

In 1966 the building was owned by a corporation

in which Hurrle and Herndon were the sole stockholders. In that year the building was sold for $200,000 in cash to Henry Pein, with a lease back to the corporation. Most of that money was apparently used to pay off the balance of a former purchase contract, as well as various bills.

The corporation then encountered financial difficulties and became in arrears in its rental payments. Pein then filed F.E.D. proceedings. Shortly before the "deadline" in those proceedings in February 1968, Hurrle asked Bennett, a "land developer," if he could help. Bennett had no funds to invest at that time, but knew Sloan, who owned a substantial business.

An agreement was then made in February 1968 under which Hurrle, Bennett and Sloan, as a joint venture, repurchased the building from Pein on a contract for $225,000, payable in monthly installments. The only cash paid at that time was approximately $6,000, which was provided by Sloan for payment of pending bills and attorney fees.

At that time the building was insured for $200,000. As a result of efforts by Bennett, however, the insurance on the building was increased to $350,000 and a policy in that amount was issued by Safeco Insurance Co. There was also some evidence that Hurrle and Herndon participated with Bennett in arrangements for that insurance.

The insurance agent for Safeco testified that he advised against insurance in that amount, although he felt that the insurance should be increased and recommended an increase to $275,000. Bennett testified that he had a written appraisal at $350,000 by an independent appraisal company. The written appraisal, if any, was never produced and the insurance agent testified

that Bennett never told him about such ...


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