dissenting.
The trial court made a finding of fact that Dean Kellar, the injured employee, was a “farm employee” at the time of his injury. In the original decision of this court it was held that Kellar was not a farm employee at the time of his injury; rather, he was a logger. A finding that Kellar was not a farm employee at the time of the accident removes from the coverage of the plaintiff’s policy any liability of the defendant Thompson for Kellar’s injury.
The majority opinion decides that this is in nature an equity proceedings; therefore, this court can retry the facts.
There was ample evidence to support the' trial court’s finding. Thompson testified that at the time Kellar was injured he was hauling tree tops from Thompson’s property to Thompson’s house, where they were to be used as stovewood. Mrs. Thompson’s and Mr. Velliquette’s testimony corroborated Thompson’s testimony in this regard. Kellar admitted that he was being paid, at the time he was injured, one dollar per hour. All the testimony was that when Kellar was logging for Thompson he was paid per cord or per 1,000 board feet cut. However, when he was doing farm work for Thompson he was paid one dollar per hour. On the Thompson property 10 to 12 cows, plus their calves, were grazed. Thompson previously had chickens, rabbits, burros and goats. He had raised hay but now used this land for pasture.
Therefore, the question is squarely raised, — is a declaratory judgment proceedings with issues such *201as raised here to be regarded as a suit in equity with all the incidents of an equity proceedings, including the right of this court to try the facts de novo ?
The declaratory judgment statute reads:
“When a proceeding under this chaper involves the determination of an issue of fact, such issue may be tried and determined in the same manner as issues of fact are tried and determined in other actions at law or suits in equity in the court in which the proceeding is pending.” OES 28.090.
Consolidated Freightways, Inc. v. Flagg, 180 Or 442, 453, 176 P2d 239, 177 P2d 422, quoted with approval from Borchard, Declaratory Judgments (2d ed), 239, as follows:
“* * * in principle declaratory relief is sui generis and is as much legal as equitable. * * *”
And from Anderson, Declaratory Judgments, 160, § 56, as follows:
“The only sound position that can be taken with respect to such classification [i.e., whether declaratory judgments actions are strictly equitable or strictly legal] is that it partakes of the properties of both legal actions and suits in equity, and that the court will apply the rules with respect thereto as the nature of the case seems to demand; that at times a declaratory judgment action may properly be classified as legal, carrying with it the attendant right to a jury trial; and that at other times, it may correctly be designated as a suit in equity, warranting the issuance of an injunction, and authorizing the granting of extraordinary relief generally.”
The United States Supreme Court recently amplified these general propositions. Simler v. Conner, 372 US 221, 83 S Ct 609, 9 Led2d 691, was a declaratory judgment proceedings. In holding that the petitioner *202had a right to a jury trial the Per Curiam opinion states:
“On the question whether, as a matter of federal law, the instant action is legal or equitable, we conclude that it is ‘legal’ in character. The record discloses that the controversy between petitioner and respondent in substance involves the amount of fees petitioner, a client, is obligated to pay respondent, his lawyer. Petitioner admits his obligation to pay a ‘reasonable’ fee under a contingent fee retainer contract stipulating that reasonableness may be set in a court trial. Respondent relies on a subsequent contract specifying 50% of the recovery, under certain circumstances, as the amount of the fee. Petitioner counters that the latter contract is the product of fraud and overreaching by the lawyer.
“The case was in its basic character a suit to determine and adjudicate the amount of fees owing to a lawyer by a client under a contingent fee retainer contract, a traditionally ‘legal’ action. See Trist v. Child (Burke v. Child) (US) 21 Wall 441, 447, 22 L ed 623; Stanton v. Embrey, 93 US 548, 23 L ed 983. The fact that the action is in form a declaratory judgment case should not obscure the essentially legal nature of the action. The questions involved are traditional common-law issues which can be and should have been submitted to a jury under appropriate instruction as petitioner requested.” (9 L ed2d at 693)
This question of whether a declaratory judgment proceedings is in law or equity most frequently arises in determining whether or not a party is entitled to a jury trial to resolve disputed questions of fact. Many of these cases are proceedings by insurance companies against their insureds seeking an interpretation by the court of the policy coverage for a particular claim. In every one of these cases, numbering about 25, the appellate court has determined that the *203basic character of the proceedings is legal and, therefore, there is a right to a jury trial.① United States F. & G. Co. v. Spring Brook Farm Dairy, 135 Conn 294, 64 A2d 39, 13 ALR2d 769, is the one exception. The Connecticut court reasoned that its constitutional right of trial by jury does not apply to actions not existing in 1818, the date of the adoption of the Connecticut Constitution.
In Pacific Indemnity Co. v. McDonald, 107 F2d 446 (9th Cir 1939), 131 ALR 208 (arising in Oregon), a passenger was injured while riding with the insured. The passenger sued her host, the insured. The host’s insurance company brought a declaratory judgment proceedings against its insured and the injured passenger. It alleged that the passenger and the insured were conspiring to procure a judgment against the insured driver and the insured breached the condition of the policy by giving false information to his insurance carrier and by failing to cooperate with it. The court viewed the situation as follows:
“* * * In the case at bar we have an appellant who has executed an insurance policy and who anticipates that an action will be brought upon that insurance policy by the person insured or by an injured person subrogated to his right. The insurance company claims that it has a just defense to this action arising out of the conduct of the insured person and also of the injured person. The issue of fraud and collusion for the purpose of obtaining a judgment by the injured person against the insured is in legal effect no more than an allegation of noncooperation. In the absence of the insurance policy and its agreement for cooperation the insured would have a perfect right to confess *204judgment in favor of the injured person regardless of whether or not there was any legal liability for the injury. It follows from what we have said that we simply have a situation herein where a party who has issued a policy of insurance anticipates a suit thereon by the insured or one subrogated to his rights and to avoid delay brings the matter before the court by petition for declaratory relief. In such a proceeding, although the parties are reversed in their position before the court, that is, the defendant has become the plaintiff, and vice versa, the issues are ones which in the absence of the statute for declaratory relief would be tried at law by a court and jury. In such a ease we hold that there is an absolute right to a jury trial unless a jury has been waived. * * *” (Emphasis added.) (107 F2d at 448)
Dickinson v. General Accident F. & L. Assur. Corp., 147 F2d 396 (9th Cir 1945), is another case involving the same type of facts, i.e., a liability insurance carrier bringing a declaratory judgment proceedings against its insured seeking a determination that there was no coverage. This court approved that case and the quote therefrom, as follows:
u <* * * jn absence of the procedure for declaratory relief it is plain that the issues here litigated could have been developed only in an action at law on the policy. A party may not, merely by reversing the normal procedure, deprive his adversary of the right which would otherwise be his to have his case determined by a jury. * # V ” Lewis v. Miller, 197 Or 354, 361, 251 P2d 876.
One of the normal procedures referred to in the above quotation is for the injured party, here, Kellar, to secure a judgment against the insured, here, Thompson. Kellar could then garnish Oregon Farm Bureau. This is a type of law action and the issues of fact are *205tried “as upon the trial of an issue of fact between a plaintiff and defendant.” ORS 29.350; Eisele v. Knight, 234 Or 468, 382 P2d 416. Another common procedure is for the insured to pay the judgment and bring an action against his insurance company, here, Oregon Farm Bureau, on the policy. This would obviously be a straight law action on a contract.
If one is entitled to a jury trial on the issue of fact in such a declaratory judgment proceedings it logically follows that one is also entitled to have the trial judge’s findings of fact be conclusive if there is any evidence to support such findings.
All the precedents, with the one exception noted, regard a declaratory judgment proceedings involving the issue of insurance coverage, such as presented here, as one to be considered as a law action.
While' the majority opinion doubts that this proceedings should be considered as having the basic characteristics of a law action, it primarily rests upon the proposition that the defendant Thompson treated it as an equitable proceedings, and thereby waives any right to now demand that it be treated as having the basic characteristics of a law action.
The majority opinion quotes from U. S. Nat. Bank v. Erickson, 208 Or 141, 300 P2d 449, and United Brokers Co. v. Dose, 143 Or 283, 22 P2d 204, to the effect that if a party does not object to the matter being tried as a suit in equity he cannot contend upon appeal that it is an action at law. Maxwell v. Frazier, 52 Or 183, 96 P 548, 18 LRA (NS) 102, contains a complete statement of this problem. It involved an attempt by the plaintiff to file an interpleader suit, joining as defendants two parties who claimed the fund under separate contracts. “In this suit defendants did not question plaintiff’s right to the bill [in equity], but *206proceeded to join issues against him as to his contractual relations; # # (at 191) Nevertheless, the court refused to assume equitable jurisdiction and stated:
“There is an entire absence of matter of equitable cognizance in the case before us; nor is the relief sought such as is peculiar to equity, and to entertain jurisdiction and grant the relief that the facts might disclose to be proper would be to assume jurisdiction of an issue, purely legal, because not questioned by the defendant at the proper time. * * (at 190-191)
Assuming it is possible to confer equitable jurisdiction upon this court by failure to object thereto or by waiver, it is my opinion that this has not been done.
The majority opinion points to the following as evidence of acquiescence or waiver:
(1) Defendant prayed for equitable relief. As seen from the complete prayer, quoted in the majority opinion, the only portion sounding in equity is the “catch-all,” “3. For such other and further relief as to the Court may seem meet and equitable.” This exact “catch-all” prayer for equity was made in Flaherty v. Bookhultz, 207 Or 462, 467, 291 P2d 221, 297 P2d 856. The court said, “But the prayer is not part of the cause of suit or of action, and therefore this phrase can add no strength to a claim for equitable jurisdiction.”
(2) The judgment prepared for the court’s signature by the defendant was captioned, “Decree.” The statute refers to the declaration that the court makes as either a “judgment or decree.” OES 28.010 et seq. It may be that the statute has in mind the use of “decrees” only in proceedings sounding in equity. My belief is that the usual practice in this jurisdiction is to designate the paper in which the court makes its *207official declaration of the rights of the parties as a “decree”; and this without thought to whether the proceedings had the basic characteristics of law or equity. This practice may be the result of frequent pronouncements of this court that declaratory judgment proceedings are controlled largely by equity practice. Such pronouncements I consider as pertaining to minor and incidental matters of practice, such as whether the paper should be entitled, “Judgment” or “Decree”; or whether it is a “suit for a declaratory judgment” or an “action for a declaratory judgment. ”
(3) When the trial court announced that it considered this as a proceedings in equity the defendant did not object thereto. One does not object to the pronouncements of the court. One objects to actions attempted by another party. If the court rules adversely, no objection or exception is necessary except to instructions given to the jury.
(4) The defendant did not ask for a jury trial or that the case be tried as one at law. To my knowledge it has never been held that a failure to do either waives a party’s right to contend that the proceedings are to be considered as a law action or indicates that the party considers the proceedings in the nature of a suit in equity.
(5) At the close of plaintiff’s evidence, defendant Thompson moved to dismiss. The trial court stated that it considered this similar to a proceedings in equity and, therefore, it would not consider the motion unless the defendant was willing to rest and put on no more evidence. The defendant was unwilling to do this; so the defendant’s motion to dismiss was not passed upon by the trial court. The defendant could have, by oral argument, attempted to persuade the trial court to change its mind. However, I know of no *208principle of law that if one does not argne with the trial court’s ruling, one thereby acquiesces in it.
(6) After the trial court’s statement that it believed equity procedure would govern the proceedings, the defendant, on one occasion, offered evidence which had been excluded “under the rule.” The plaintiff had previously done this on one occasion. The defendant offered it “under the rule” at the court’s suggestion : “You may take it under the rule if you wish.” Admittedly, taking evidence “under the rule” is a procedure peculiar to equity. The “rule” is in the form of a statute and is to enable this court to consider, in trying the facts de novo, evidence which it has found the trial court excluded in error. See OES 17.045; Sutherlin v. Bloomer, 50 Or 398, 93 P 135. The procedure in this proceedings, without a jury, would have been exactly the same if the testimony given had been termed an “offer of proof” as it would have been termed in a law action. This conduct of defendant’s counsel is inconsistent with his present position, but it was of no consequence.
(7) The defendant in his respondent’s brief and his brief in support of his petition for rehearing urged this court to consider testimony not received by the trial court but in the record as taken “under the rule.” In so doing the defendant was not urging that we re-examine any fact found by the trial court. The defendant also does not urge that such excluded evidence was improperly excluded. Therefore, this court would not consider it whether it was taken under the rule or as an offer of proof.
This type of argument in the briefs is inconsistent with defendant’s position. It occurs, however, in conjunction with defendant’s positive argument in both briefs'that this is in the nature of a law action and *209the trial court’s findings are conclusive. This makes it appear that it was a matter of inadvertence rather than an intentional relinquishment of a known right.
(8) Defendant failed to demur and challenge the jurisdiction of the court of equity. A demurrer on this ground would have been overruled and properly so. The complaint stated a cause for a declaratory judgment. It did not invoke jurisdiction peculiar to a court of equity.
If defendant’s conduct constitutes a waiver of his right to contend this should be treated as a law action, the plaintiff’s conduct on appeal likewise constitutes a waiver of its right to contend this is an equity proceedings.
The basis of plaintiff’s argument is stated in its opening brief as follows: “The trial court found * * * Dean Kellar was a farm employee. This finding was objected to by the plaintiff, but said objections were denied and counter-findings rejected by the trial court. This was a proper question of fact for the court to determine.” (Emphasis added.)
“The inquiry then is whether or not the exclusions in the endorsement applies [sic],
u* a? #
“It is apparent that Dean Kellar alleges he sustained bodily injury and the court found that said claim arose out of the course of farm employment. It would then appear that the only real question as to the application of Exclusion (c) of the endorsement is whether: ‘benefits therefor are payable or required to be provided under any Workmen’s Compensation Law.’ On this we feel that there is no issue as a matter of law and that the court erred specifically in its Finding X:
“ # * and that the defendant Kellar did not sustain bodily injury or sickness or disease as an employee of the- defendant Thompson *210where benefits therefor are payable or required to be provided under the Workmen’s Compensation Law of the State of Oregon.’ ”
Defendant’s position on this issue of whether Kellar was a farm employee is stated in his brief as follows:
“Thus, in these proceedings the disputed question of fact was whether or not the employee Kellar was a farm employee of the defendant Thompson and was engaged in performing duties incidental to the ownership, maintenance and use of farm premises. The Trial Court’s findings of fact in that regard (Finding VI) has the force and effect of a verdict and if the finding is supported by any substantial evidence the Trial Court should be affirmed. * * *”
Defendant’s above-quoted contention was not contested by plaintiff in its reply brief.
At the original oral argument plaintiff did not contest the proposition that the trial court’s finding that Kellar was a farm employee was conclusive. The plaintiff orally argued:
“* * * The court found that actually this man at the moment was engaged in farm work. This again is something with which we don’t have any great quarrel because it isn’t too material. * * * “* * * and this is a legal conclusion on the part of the court and has nothing to do with the findings of fact as such. Even though the findings of fact when unsupported by any evidence, of course, are subject to review in this hearing anyway. * * *” (Emphasis added.)
This initial opinion of this court was the first time that the right to review de novo the trial court’s finding that Kellar was a farm employee was asserted.
I do not believe it proper, however, to determine the substantive rights of these parties by putting their *211respective conduct evidencing waiver into a scale and determining which conduct outweighs the other.
The starting point for a determination of these rights should be that this is a proceedings which has the basic characteristics of a law action. The only-reason this court would not continue to regard this proceedings as basically a law action is that the conduct of one of the parties caused the opposing party, the trial court, or this court, to take some action because they were misled by such party’s conduct into the belief that it was not basically a law action.
Nothing in the record indicates that anyone was misled or would have done anything in any different way. If the defendant had omitted that part of his prayer for general equitable relief; if the defendant had strongly contested the trial court’s pronouncement that the case was governed by equity practice; if the trial court on such protest had either changed its mind and considered it as a law action, or if it did not change its mind; if the defendant had not offered excluded evidence “under the rule” and then requested this court to consider such evidence; if the defendant had labeled the declaration of rights a “judgment” instead of a “decree,” nothing would be changed. The plaintiff would not have conducted itself differently in any way. The trial court would not. The results would not be different.
Despite this, the majority conclude that defendant’s conduct was of such a character that he is now es-topped from contending that this proceedings is what it really is, a law action, and for this reason an otherwise valid judgment in favor of the defendant must be reversed. With this I cannot concur.
Sloan and O’Connell, JJ., join in this dissent.The cases are collected in 13 ALR2d 777, §§ 7, 12. More recent is Temperance Insurance Exchange v. Carver, 83 Idaho 487, 365 P2d 824.