The original complaint in this action was filed on April 4, 1929. On March 10, 1930, the plaintiff filed a supplemental complaint in which it alleged that prior to January 1, 1929, demand was made upon the defendant for the sum of $10,000, the amount of its undertaking, and that the defendant had failed and refused to pay that sum or any part thereof. The supplemental complaint further alleges that $1,000 is a reasonable sum to be allowed as attorneys' fees.
After this court had, on the first appeal, reversed the judgment appealed from, the plaintiff on June 3, *Page 270 1932, filed an amended complaint, the allegations of which are substantially the same as in the original complaint, with the exceptions hereinafter noted. In this amended complaint it is alleged that Hattie E. Miller is living and is of the age of 60 years, with a life expectancy of ____ years, and that Mamie Karlan is living and 53 years of age, with a life expectancy of 23 years; that on December 28, 1928, plaintiff made demand upon the defendant for payment to it of the sum of $20,000 for the trust fund which plaintiff was to administer; that defendant refused to pay the sum demanded or any part thereof; and that plaintiff has been put to great expense in maintaining the action and for the employment of counsel, in the aggregate sum of $2,000. The prayer is for a judgment in the sum of $10,000 and the further sum of $ ____, special damages, and for plaintiff's costs and disbursements.
On the date when the amended complaint was filed the plaintiff filed a supplemental complaint in which it alleged that since the commencement of the action neither the defendant nor The E. Henry Wemme Company had paid any sum of money to plaintiff or to Hattie E. Miller or Mamie Karlan on account of the decree rendered in the circuit court or in payment of the bequests made to said Miller and Karlan in the will of E. Henry Wemme of $35 per month each from February, 1927; and that there is due to each of said beneficiaries the sum of $35 per month for the month of March, 1927, and a like sum for each and every month thereafter. It is further averred in the supplemental complaint that said Hattie E. Miller is still living, is 64 years of age and has a life expectancy of ____ years; and that said Mamie Karlan is still living, is 58 years of age and has a life expectancy of 18 years. The supplemental complaint further alleges that on *Page 271 December 28, 1928, the plaintiff and said beneficiaries demanded payment by the defendant in accordance with the decree of the circuit court rendered by the Honorable Robert G. Morrow, judge, for the sum of the bequest to the said beneficiaries as found due in said decree, and for the balance of the sum of $10,000 for a trust fund as provided in said decree, and at said time offered to make to defendant such proof of loss or its liability under such decree as defendant might desire or require; that the defendant at that time denied any and all liability for any sum whatever upon its undertaking, and asserted and declared to plaintiff that it was fully informed as to the decree referred to and did not desire or require any proof of said decree or notice thereof or proof of loss; and that by reason of the facts alleged the defendant ought to be estopped from claiming or alleging that the plaintiff or said beneficiaries "failed to make proof of loss because of or upon said undertaking".
The supplemental complaint alleges that $2,000 is a reasonable amount to be allowed as attorneys' fees, and prays for $10,000 and for the sum of $2,000 as attorneys' fees.
The first question to be considered is whether or not the trial court erred in awarding attorneys' fees to the plaintiff. Reference has been made to the fact that on the first appeal the original and supplemental complaints omitted certain facts which were alleged in the amended and supplemental complaints filed after the cause was remanded for further proceedings. What was said concerning attorneys' fees on the first appeal is not applicable here, for the reason that the plaintiff amended its pleadings so as to cure certain defects pointed out when the case was first here for determination. On rehearing Mr. Justice KELLY, speaking *Page 272 for the court, pointed out that the original supplemental complaint failed to state when demand was made upon the defendant and failed to show whether or not, at the time demand was made, the defendant was under any obligation to pay. He further directed attention to the fact that the plaintiff failed to allege that any demand was made for the bequests and failed to allege "that defendant did anything or failed to do anything constituting a waiver of proof of loss".
In the supplemental complaint filed after the cause had been remanded the plaintiff did allege acts on the part of the defendant constituting a waiver of proof of loss.
The case was tried by the circuit court without the intervention of a jury, and the court made, among others, the following finding:
"At the time the said demand was made, as stated herein, the defendant expressly declared that it would not pay said sum of $10,000.00 or any part thereof and denied and disclaimed any and all liability in any sum because of or on account of the undertaking alleged in the complaint as executed by the defendant as surety for The E. Henry Wemme Company, et al., or the decree set forth in Paragraph VI of these Findings, and at said time the defendant well knew and was informed of the nature and import of said decree and the defendant, at the time said demand was made, denied and disclaimed any liability to the plaintiff or Hattie E. Miller or Mamie Karlan because of said decree and the defendant never requested or demanded any proof of the rendering of said decree and by the statements and assertions of its agents and officers waived any proof of its liability."
Section 46-134, Oregon Code 1930, provides that the plaintiff, in an action brought on his policy of insurance, "in addition to the amount which he may recover, shall also be allowed and shall recover as *Page 273 part of said judgment such sum as the court or jury may adjudge to be reasonable as attorneys' fees in said suit or action". That section of the code applies also to actions brought on bonds and undertakings: School District v. New Amsterdam Casualty Co.,132 Or. 673 (288 P. 196); Fred Christensen, Inc., v. HansenConstruction Co., 142 Or. 549 (21 P.2d 195).
The circuit court definitely found that the defendant had waived any proof of its liability, which finding, if there is any evidence to support it, is binding on this court. By defendant's denial of all liability on its bond and by its other acts set forth in the finding above quoted, the necessity of proof of loss was obviated: Eaid v. National Casualty Co., 122 Or. 547 (259 P. 902).
According to the supplemental complaint last filed, proof of loss was submitted by the plaintiff and the beneficiaries to the defendant in December, 1928, less than six months prior to the filing of the original complaint. The plaintiff, as such demand was so made, had the right after the lapsed six months to file a supplemental complaint asking for attorneys' fees: Walker v.Fireman's Fund Insurance Co., 114 Or. 545 (234 P. 542);Massachusetts Protective Ass'n, Inc., v. Palmer, 141 Or. 688 (18 P.2d 585).
It is not easy to understand how the amount sought to be recovered in this action is more difficult of ascertainment or more unliquidated than it would be in an action on a fire insurance policy or many other instances based on insurance policies and undertakings on bonds in which attorneys' fees are allowed. If attorneys' fees are to be denied in this case because the amount of recovery is unliquidated, then such fees must also be denied in many cases which the statute sought to cover. *Page 274
We have here the strange inconsistency of denying reasonable attorneys' fees to plaintiff because the amount of recovery sought in this action is indefinite and uncertain, even while allowing plaintiff the entire amount of the bond by computing the future monthly payments by mere reference to mortality tables.
Based on the pleadings, the evidence and the findings of the trial court, the plaintiff is entitled to the amount awarded as attorneys' fees in this action. Something is said in the majority opinion to the effect that the attorneys who prosecuted the action were not in the employ of the annuitants, but in the employ of the plaintiff. According to the section above referred to, the plaintiff is entitled to attorneys' fees, and not the beneficiaries.
This court on the former appeal decided that the plaintiff could maintain this action, and the question of whether or not the demurrer to the amended complaint should have been sustained on the ground that the plaintiff was not the real party in interest was decided adversely to the defendant then.
I can not concur in the statement of the majority of the court that the demurrer to the complaint should have been sustained if construed as challenging the sufficiency of that pleading. Nor can I concur with the majority opinion that the amount now due the beneficiaries can be considered in determining whether or not the amount awarded by the circuit court was correct. We must take the facts as shown by the record. I concur, however, in the conclusion that plaintiff is entitled to a judgment of $10,000 in addition to the attorneys' fees awarded by the circuit court.
BEAN, J., concurs, as to the allowance of attorneys' fees. *Page 275