Bailey v. Security Ins., 196 P. 252

196 P. 252 | Or. | 1921

BROWN, J.

1, 2. The plaintiff assigns a number of errors relating to the failure of the court to give to the jury certain instructions, but the plaintiff has not presented a record whereby this court is authorized by law to review the proceedings complained of. We have searched the record brought from the lower court, for the purpose of ascertaining and reviewing the alleged errors of the trial court. No exceptions are disclosed. Our Code thus defines the term “exception.”

“An exception is an objection taken at the trial to a decision upon matter of law, whether such trial be by jury or court, and whether the decision be made during the formation of a jury, or in the admission of evidence, or in the charge to the jury, or at any other time from the calling of the action for trial to the rendering of the verdict or decision * * ”: Section 169, Or. L.

“No particular form of exceptions shall be required. The objection shall be stated, with as much evidence, or other matter, as is necessary to explain it, but no more; provided, however, that the bill of exceptions may consist of a transcript of the whole testimony and all the proceedings had at the trial, including the exhibits offered and received or rejected, the instructions of the court to the jury, and any other matter material to the decision of the appeal”: Section 171, Or. L.

“ * * No exception need be taken or allowed to any decision upon a matter of law, when the same is entered in the journal, or made wholly upon matters in writing and on file in the court”: Section 172, Or. L.; Montague O’Reilly Co. v. Town of Milwaukie, 193 Pac. 824 (not yet officially published).

The provisions of the foregoing section (Section 172) have no application to the peremptory instruction of a trial judge when directing the jury to return a particular verdict in a given case. It has been the practice to review the rulings of the trial court when directing a nonsuit or a verdict, when the validity of such order has been challenged by an exception duly saved and preserved of record. The ruling of the trial judge upon motion for a directed verdict is not a decision “upon a matter of law * * entered in the journal or made wholly upon matters in writing and on file in the court.” Such a construction would lead to the doctrine that every erroneous and prejudicial ruling upon a trial could be reviewed without an exception, as it would involve a decision upon a matter of law and necessarily affect the judgment. In discussing the harmful results that would flow from a practice permitting review on appeal without the necessity of saving an exception at the trial, the court, in the case of Barnum v. Chamberlain Land & Loan Co., 34 S. D. 137 (147 N. W. 647, Ann. Cas. 1917A, 848), wrote that:

“A defendant, who admitted the making of oral contract, void under the statute of frauds, and who relied solely upon its invalidity, could review, without exception, an erroneous ruling upon the trial admitting parol evidence of such an agreement, for this would involve the merits and necessarily affect the judgment. The result of this doctrine would be that we would have a bill of exceptions without the necessity of any exceptions in it, and the phrase ‘errors of law occurring at the trial’ would cease to have any distinctive significance.”

On the general proposition that, in order to save for review the direction of a verdict by the court, an exception must be taken at the trial, see the following authorities cited in Barnum v. Chamberlain Land & Loan Co., 34 S. D. 137 (147 N. W. 647, Ann. Cas. 1917A, 848); Peterson v. Siglinger, 3 S. D. 255 (52 N. W. 1082); Beckwith v. Dierks Lumber Co., 75 Neb. 349 (106 N. W. 442); Warner v. Sohn, 85 Neb. 571 (123 N. W. 1054); De Lendrecie v. Peck, 1 N. D. 422 (48 N. W. 342); McNab v. Northern Pac. R. Co., 12 N. D. 568 (98 N. W. 353); Kephart v. Continental Casualty Co., 17 N. D. 380 (116 N. W. 349); Holum v. Chicago etc. R. Co., 80 Wis. 299 (50 N. W. 99); Klotz v. Milwaukee Electric R. Co., 144 Wis. 384 (129 N. W. 524); Beebe v. Minneapolis R. Co., 137 Wis. 269 (118 N. W. 808).

The authors of 6 Ency. of PI. & Pr. announce the rule:

“Where no exception is taken to the direction of a verdict, its propriety cannot be considered on appeal.”

3. It is an elementary principle of law governing appeals that it is not error simply, but error legally excepted to that constitutes ground for reversal. Except as provided by Section 172, Or. L., the errors relied upon for the purpose of reviewing the rulings of the lower court must be raised by appropriate objections and exceptions interposed on the trial.

In the ease of Casto v. Murray, 47 Or. 57, 59 (81 Pac. 388, 883), this court said:

“If either party require it, the charge of the court must be given in writing, and when so given it must also be filed with the clerk (B. & C. Comp., § 132, subd. 6, [Or. L., § 132, subd. 6]), and, being so filed, it becomes a part of the record in the case. Oral instructions apparently were not designed to be thus incorporated in the record. It is the office of the bill of exceptions to embody a statement of the events and holdings of the court during the progress of the trial and in the submission of the cause to the jury, and it is only by this method that a record of the trial is made up. All matters not otherwise required by law to be made a part of the files and record in the case are required thus to be certified, or else the appellate court cannot take cognizance of them: Farrell v. Oregon Gold Co., 31 Or. 463, 473 (49 Pac. 876), and cases cited.”

The history of the trial of this case, as shown by the record, is one of perfect accord between the plaintiff and the court as to all rulings. The plaintiff moved the court for a directed verdict. The motion was oral. No form of verdict was suggested to the court. After discussion, the court peremptorily instructed the jury to return a verdict in the sum of $150. No objection was interposed and no exception saved.

It is the established law of this state that an erroneous ruling by the trial court on a motion for a directed verdict in a civil case is an error in law and must be excepted to or it will not be reviewed on appeal.

, There being nothing before this court to review, we are required by law to affirm the judgment of the court below. Affirmed. Rehearing Denied.

Burnett, C. J., and McBride and Harris, JJ., concur.