Statesman Pub. Co. v. Foltin

[71] Opinion by Mr. Chiee Justice McBride. 1. The plaintiff both by pleading and proof has shown a good cause for interpleader. It is evident that with two claimants for each of the three principal prizes it would have exposed itself to a multiplicity of small actions in regard to the fund in its hands had it assumed to pay it to any set of claimants. The appealing parties admit in their answer that they claimed, respectively, the first three prizes and were prevented from bringing actions to recover them only by reason of the injunction issued in this suit. The three defendants who were successful in the court below earnestly contend in their pleadings and by their evidence that they, respectively, are entitled to the three principal prizes and that their competitors were guilty of such fraud and collusion as to disqualify them as claimants. We are of the opinion that the circumstances bring this case clearly within the rule announced in Pope v. Ames, 20 Or. 199 (25 Pac. 393), and in North Pac. Lumber Co. v. Lang, 28 Or. 246 (42 Pac. 799, 52 Am. St. Rep. 780), and that the decree of the court so rendered was correct as to this branch of the case. Kieradlo has not appealed so as to the issue between himself and McOlaen and the next highest on the list nothing need be said, except so far as it arises incidentally in the course of the proceedings. 2. It appears from the evidence that “upon the face of the returns” the appealing defendants and Kieradlo stand higher than McOlaen, Tillman, and Mrs. Jones, and unless these results are shown by the preponderance of the evidence to have been fraudulently obtained, they were entitled to receive the prizes. The evidence of fraud and collusion on their part is very slight. Foltin, Czyz, and Janowslá are all natives of Poland. Foltin is married to Janowski’s aunt and [72] is blood uncle to Czyz. At the time of the contest Janowski was an attendant at the Oregon Insane Asylum, Czyz was at Dee, in Hood River County, about one hundred miles distant, and Foltin, about seven miles from Salem. Kieradlo resided in Chicago, and is not shown to have been acquainted with the three appealing defendants, and they all deny acquaintance with or any knowledge of him. This relationship of the three appellants and the fact that they were the three highest contestants, that their method of procedure was substantially the same, and the results only slightly variant, is practically the only evidence of fraud or collusion between them. It was claimed that the handwriting on the prize slips was so similar as to indicate that they were all written by the same person, but an inspection does not disclose any greater similarity than would probably be found to exist in the handwriting of any two persons of the same nationality who had received an ordinary education. It is all of the angular type peculiar to continental Europe, and in our judgment there are many and controlling indications that each slip was written by a different person. As to the method used it appears that there were several thousand contestants, and, perhaps, a million methods which would comply with the terms of the contest producing greater or lesser results, but it is plain that there must have been only one method to produce the highest result, and the nearer a contestant could approximate to that the better the result he would obtain. It is in evidence that these parties had engaged in other contests of a similar character, and their testimony discloses an intelligent comprehension of methods by which high results may be secured. They were not living in the same house or the same town, and but two of them in the same vicin [73] ity, and they all testify that they never conferred in any way in regard to the work they were doing. That they chose the same method of solving the proposition may he attributed either to their experience in former contests or to their close attention to the conditions of the problem. Fraud is never presumed; it must be proved; and it is not sufficient to establish fraud that a few detached circumstances susceptible equally of an innocent or a guilty construction should be shown. The evidence shows that Kieradlo resides in Chicago, and that none of the appealing defendants ever saw or heard of him until this action, and yet he pursued the same methods and approximated the same results. So far as indicated by the evidence he never conspired with the appellants or had an opportunity to do so, yet he is found to be a co-conspirator with appellants and they with him because he and they used what seems to have been the best method and thereby obtained the best results. While the fact that these three appellants are related either by marriage or by consanguinity, and that they each have achieved a high score in the contest and by similar methods, are circumstances calling for close scrutiny, we do not feel that they are sufficient to overcome the presumption of fair dealing with which the law invests every transaction until it is overcome by a preponderance of testimony to the contrary. As to the plaintiff the decree of the Circuit Court is affirmed with costs. As to the defendants appealing the decree is reversed and one will be rendered in their favor as against the defendants McClaen, Tillman, and Mrs. Jones as prayed in their cross-complaint. Affirmed in Part. Modified in Part, Mr. Justice Moore, Mr. Justice Bean and Mr. Justice McCamant concur.