456 P.2d 499 | Or. | 1969
In this appeal, an injured workman asks us to overrule Dimitroff v. State Ind. Acc. Com., 209 Or 316, 306 P2d 398 (1957), and reinstate Hinkle v. State Ind. Acc. Com., 163 Or 395, 97 P2d 725 (1940), which in turn had been overruled by Dimitroff.
The workman alleged that he had sustained a permanent partial disability, and the State Compensation Department denied that his injury had left permanent sequelae. The case was tried to a jury as was the practice under the former law (superseded'by Oregon Laws 1965, ch 285). The jury found for the Commission.
The assignments of error challenge the propriety of the trial court’s instructions. The court gave an instruction based on ORS 41.360. The statute provides as follows:
“All presumptions other than conclusive presumptions are satisfactory, unless overcome. They are disputable presumptions, and may be controverted by other evidence, direct or indirect, but unless so overcome, the jury is bound to find ae*67 cording to the presumption. The following are of that kind:
ÍÍ* # * # *
“(15) Official duty has been regularly performed.
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“(33) The law has been obeyed.
a* * # *« $ ??
The instruction on the statute was held to be inconsistent with the purposes of a trial de novo before a jury, and was disapproved in Hinkle v. State Ind. Acc. Com., supra. The Hinkle case, however, was specifically overruled on that point, and since 1957 the trial courts in workmen’s compensation eases have usually given the instruction. The giving of the instruction in a jury trial involving the revocation of a motor vehicle operator’s license was disapproved in Garcia v. Dept. of Motor Vehicles, 253 Or 505, 456 P2d 85 (1969).
In view of the statutory changes which have eliminated the jury trial from the judicial review of compensation awards, we have concluded that the conflict between the Dimitroff and Hinkle cases need not be resurrected for this one case. The case was tried under law that was settled; both parties knew the rules; the jury’s decision has adequate support in the evidence.
Affirmed.
