117 P. 991 | Or. | 1911
Opinion by
The bill of exceptions states that the court gave the jury oral instructions upon the issues made by the evidence and pleadings, but such instructions are not contained in the record. In Dawson v. Pogue, 18 Or. 94, 99 (22 Pac. 637, 639: 6 L. R. A. 176), Mr. Chief Justice Thayer says:
“It seems to be that it is the better rule to require counsel to bring here the instructions which the court did give, or have the bill of exceptions state what instructions were given, if any, in reference to the matter covered by the instructions asked and refused, before they are allowed to complain in consequence of such refusal.”
In that case Mr. Justice Lord suggests that the above rule ought to be confined to cases where the instructions given are written, but he refrains from deciding the question. However, any difficulty arising from the fact that the instructions are oral would be easily avoided by a statement in the bill of exceptions of what was said by the instructions given upon the matter covered by the one asked, or that it was not included in any oral instruction. The rule stated by Chief Justice Thayer seems to be general. See Moody v. Railroad Co., 41 Iowa 284; Kennedy v. Anderson, 98 Ind. 152; Commissioners v. Roberts, 22 Kan. 762; Elliott v. Rosenberg, 17 Mo. App. 668. Therefore error in refusing the. instruction asked is not shown.
From the record the error in the verdict and judgment clearly appears to have been an oversight of the jury in
The judgment is affirmed. Affirmed.