*1 1932; exceptions September Motion to remand bill of denied 28; 16; argued reargued May and submitted affirmed March 18; July rehearing September denied v. LADD JOHNSON (2d) (2d) 17) 24 P. *2 Moulton, of Portland, Lord & for the motion. opposed. Bechen, Senn of Portland, & respondent J. The BEAN, C. moves the court to exceptions remand bill the of on file to the circuit court certify “with directions to this court whether Ex- ception Exception by No. 4 and No. 5 were taken de- appellant fendant and at the time of the trial in the certify cause, above-entitled and to whether the record appearing upon pages transcript of 134-135 the of exceptions evidence attached to the bill of herein marked A’ ‘Exhibit is the true and correct record of exceptions by appellant taken defendant and exceptions pur- court, trial or whether the record of ported by Exceptions to be shown said No. 4 and 5 is judge a true and correct record”. The trial has al- ready pertaining made a certificate to the matter. upon attorney
The motion based the affidavit respondent transcript for effect to the that the reporter according is true and correct official to his memory knowledge subsequent cause; exceptions trial of cause the and Ex- to the bill respondent hibit A served counsel for were very busy at time of service he was with other carefully trials and had no time to check the bill of exceptions correctly reported to see whether the same proceedings in said and so informed coun- cause, appellant, by sel for and was counsel that the advised exceptions bill of conformed and no record exceptions than included therein other those were objections made at no were trial; therefore, taken exceptions judge or trial to the bill of and the filed respondent. so informed counsel transcript It in the motion and is shown testimony page at the close of the instruc- that, on inquired given the court of coun- tions any matter the court has overlooked?” “Is there sel: *3 appellant whereupon are stated: “We counsel for except the withdrawal the instructions satisfied with separate third first, of the second and from the of the refusal defenses, and, course, of answers requested any give instructions.” of our court to exceptions there are contained two In the bill of exceptions Nos. 4 and the instructions appears to be conflict between there Therefore, 5. by exceptions and allowed as settled the bill of reporter. transcript official judge and the Objections of the bill form and structure to the judge, exceptions to the trial addressed should be of duty of the bill. Red the terms to settle it is whose (134 Ann. 485, P. 5,P. 138 153 Wade, 69 Or. seeker v. 269). 1916A, Cas. testimony as set forth of
A statement judge, by exceptions, the trial is certified of bill
271 transcript against binding Supreme as on the Court stenographer. testimony by the official of the same 327). also P. See Miller, Latourette v. 67 Or. P. Scott, Hoskins v. Weinstein Or. 271 A. L. R. P. Wheeler, 733, applied to the statement of The same rule must be exceptions exception bill an contained in the thereby. judge, by are the trial and we bound certified signing exceptions trial of a bill of every judge material is a certification that statement except preceding signature as true, therein other Nash, In York v. wise stated.
59), following former Mr. records the Bean language: exceptions “When, therefore, bill of signed by judge, this case was the trial he in effect every certified as material thereof, correct statement excepting might certificate, such as be modified his
[*] * * ." enough discrepancy It is not to show that there is a exceptions transcript between the bill of and the reporter. appears may the official far it As as stage at a that, different of the trial or when the in- excepted given, structions the counsel saved were exception making an and that this was overlooked in the statement at the end the trial. opinion proceedings
We are of the that the for the exceptions correction of error the bill of should originate in the trial court. Springer, page
In Brewster v. at 79 Or. following: “Notwithstanding we find the an *4 appeal judgment may per- from a have been taken and jurisdiction of the cause is retained the trial fected, empower any time it, court sufficient to at before the appeal amend determined, heard and the bill of
exceptions the facts.” to make conform to so as Oregon Citing effect see numerous cases. To same Ekwall, ex rel. v. State judge trial
We are not informed that the desires exceptions the bill of to make 'correction of appears, giving present and as the record now case, exceptions proper and also to effect to the bill of reporter, transcript re the motion to of the official must be denied. mand
It is so ordered.
On the Merits (2d) 17) (Senn of Reckén, & of Portland Senn, Frank S. brief), appellant. for Portland, on of Lord, both and William I. Moulton Arthur brief), on the (Lord Portland, of Moulton, & Portland respondent. for Oregon State Feder- Portland, Oreen,
A. B. curiae. amicus Labor, ation being plaintiff, April em- J. On KELLY, in the absence of cook, and, ployed as defendant being care of the three- intrusted with nurse, in' defend- went for ride year-old. defendant, son *5 taking driven her. The car was with the child ant’s car employ of defend- Mr. who was Anderson, a against a tele- gardener. ran The machine as a ant injuring plaintiff. phone pole negligence, im- charged with Anderson
Plaintiff operation automo- putable defendant, to keep proper failing driving a to fast, too bile, in signal given failing a a to notice ahead, lookout signaled intended that had motor truck which pass attempting motor said left, turn to the and truck. appeal the former herein. On
This is the second appeal, driver this court held that so as to re- were not fellow servants the automobile negligence driver. John- lieve the master (5 (2d) son v. Ladd, assigned. purported errors are Seven nearly Hammersly, policeman, with Mr. Joe assigned years’ experience as officer, two such familiar work, traffic who testified he was with namely, year type suit, of car in Franklin of cars, with that he had driven such brakes; two wheel was able to tell the distance within which and that he going speed stopped at a such a car could when twenty-five an was asked: far or hour, miles “How length it take?” what would objection interposed question, was thus:
To that Senn; incompetent, object “Mr. I to that as irrelevant and immaterial”. objection first
This overruled defendant’s ruling. assignment A re- of error is based us that no of the authorities convinces error was view thereby committed. App.
Crandall v. Krause, 165 Ill.
Johnson
15;
Withey
267);
Quinn, 130Minn. 134
N. W.
v. Fowler
Hughey
923);
Co.,
The record discloses signal given by that a of intention to turn was by extending driver of the motor truck ahead a wooden shape long; bar in of a hand and arm two feet that defendant’s driver did not see it; defendant’s car good was in mechanical im condition; before the pact fifty sixty auto defendant’s skidded or feet. In question this state of the record, of whether de negligent part fendant’s driver was or in as whole charged jury. properly submitted to the was and said whether driver upon ap were fellow servants was decided the former peal is the law the and that decision became and of (294 Co., case. v. R. N. P. Adskin O. W. &
275 823); (285 605); P. Co., 132 332 Hansen v. Bedell Or. (280 329); Douglas 130 P. Farmer’s Rumelin, v. Or. 375 (268 P. al., 126 602 Bank v. Ellis et Or. Weston (252 972); 1009); 44 P. Booth- Levine, v. 121 Levine Or. Kelly Oregon, Co., R. R. 117 Or. etc., v. Lumber Co. (230 (243 773); 112 572 Eccles, 438 P. Hostetler v. Or. (212 367); 549); P. Hollister, P. v. 106 407 Reed Or. (119 333); Hanley 60 609 P. Combs, William Co. v. Or. (68 405); Stager Troy Laundry 41 141 P. v. Or. 180); (52 P. Lambert, British Ins. v. 32 496 Co. Or. (31 280); Coulter, Trust v. 23 131 P. Portland Co. Or. Rippey, 1005); Murphy 22 P. Kane v. 299 v. Or. City Rep. 22 Albina, 106 P. Am. Or. St. 578); Applegate 429); Dowell, Thompson Hawley, Powell v. Dayton, etc., R. R. Co., Or.
Assignments four and five are three, based alleged giving excep error in certain instructions. No giving tion saved to the instructions and *7 questions sought presented hence the to be are not regularly supplemental before us. Moreover, the bill exceptions actually discloses that the instructions as given by judge the learned trial are not erroneous.
Assignment urges six that error was committed give requested the court’s refusal to instruction to recovery permanent the effect that no could be had for injury. complaint, plaintiff alleged “plain In her that bodily vigor permanently tiff’s health and have been injured”. Poyntz, expert, specializing
Dr. L. K. a medical diagnosis, question, upon plain- in answer to a based symptoms, tiff’s as as reflected record, plaintiff’s permanent whether not, condition is or tes- permanent”. Taking “I tified, think it is the view, plaintiff, could most favorable to a deduction which is testimony of from that answer and other be drawn applied permanency this witness that the mentioned disability resulting suit and from the accident in request plaintiff’s The not from other maladies. contrary properly instruct to the refused. assignment of error is based The seventh damages awarded. the contention that excessive were discloses that was confined evidence hospital again to the weeks at one time and two days; eight that she remained at the for month and that lost home of her sister for three she her weeks; wages except intervals, for four that for these months; customary perform she has been able to her work; earning capacity per her month board and is $90 difficulty on where, room. The is not free from case distinguish the one we seek to between the result hand plaintiff’s other, of the accident on the suit, and, disability because of her chronic the effect of catarrh, thyroidectomy, prior impaired appendectomy vision, and a former aural for which no claim could abscess, Taking liable. or made that defendant is the view plaintiff, most favorable to find that she suffered we on and left forearm face, contusions her chest and a resulting concussion of the brain in headaches, nerv- lapses memory; ousness and occasional right eye hearing vision of the and the of the left ear impaired, bodily pains thereby are suffers and that she rendering accomplish- her usual work more difficult of ment. No skull or other fracture is At shown. the time *8 forty-five years age. was accident, attending physician’s The fee and the $160.50; hospital fees were $254. td Mr.
Mr. Justice Justice Belt, Bossman opinion does not are of the that evidence writer support judgment amount of $15,000, a in the entire power but, and that have to reduce three mem- it; we bers of the court hold that the action assessing damages is that under the conclusive, and provisions of the state con- section 3 of article VII of authority change stitution this court is without judgment. opinion In the Mr. written contemporaneously rendered herewith, Bailey, point view of those members of court on that stated.
Upon phase of the case, the view of the writer is that the terms of the error constitution, warrant- ing precedent reversal is not made a to the condition right by supreme exercise of the court to direct entry of such as should have been en- tered in the court below. having
This court is on record as determined defi- specific nite amount in another case similar to the one beyond at bar, which there was no evidence to judgment, judg- case which the amount of the ment entered in the court below was reduced. Martin Oregon Stages. Inc., 129 Or. 435 only distinction between case and the instant case is that in the former, error, other than as to the amount appear, of the award, while in the case at bar, the rec- any except ord does not disclose error that the amount damages large. assessed is too To the it is writer, inconceivable that error in the alleged juror indiscreet conduct of one affords determining basis whatever whether or not the damages award of is excessive. If this court is able to point beyond determine the which there is no evidence *9 given judgment support such error . a in a case where certainly appears, so to is not less able determine in a such error occurs. case where no appears, the
If it he said that no such error where jury the and that fact, must he deemed to have tried constitutionally inhibited, a re-examination is thereof the the at once is obvious that cases where answer affirmatively say there is no court can evidence support such constitutional inhibition does verdict, apply. not duty right of the court to
Because expressly change the effect of a verdict is restricted there is no to those cases where evidence right by appel- of such verdict, such a the exercise zealously rare late court should he restricted to those minds are not at variance instances where reasonable beyond judg- point certain amount the on a entirely unsupported by ment would be evidence. the circuit court is affirmed. J., concurs. Rossman, Where the facts and
CAMPBELL, J. evidence are regarding damages such the amount of that reasonable might disagree, minds then this court should not dis- jury prejudi- turb there the verdict of the where is no error in the record. This case is not one cial where the verdict he disturbed. this addition, should With I opinion. concur the above specially concurring: BELT, J., power, If this court it has no Is hold that Oregon § virtue of article 3 of the Constitution, jury ground to reduce the verdict of on the that it destroyed. line of defense he excessive, last will against longer protection passion No will there be jury prejudice of a run amuck on the damages. verdict had case, What in the instant if, it still be con- $15,000, been instead of would $100,000, tended that this court on account of the not, could Con- peradventure, a disturb the verdict? stitution, If, sprained what $100,000 awarded would thumb, *10 say outraged this court do about it? we to the Would beyond we this defendant, “Yes, know verdict is prejudice passion, realm of it reeks reason, with injuries and has no relation to the but sustained, there nothing to be done about it”? While courts must be and are reluctant interfere finding with the in of a the assessment of dam- ages, justice in must act the interest of when plainly goes beyond verdict the limit of reason. In so holding, no violence is done to the Constitution for we may say legal support well there is no evidence to beyond Surely verdict limit. such there must be some power jury. passion limit to the of a If there is not, prejudice reign supreme. in some instances will firmly damages I am convinced that the amount of found in this case has no reasonable relation injuries sustained.
Regardless by of all that has been said this court past question, decisions relative to this the time has come to declare a rule which will result in the whole- justice. some administration of opinion
I concur in the Kehly. of Mr. Justice sufficiently BAILEY, J. facts the case are opinion set forth in the of Mr. which Kelly, by that error he concludes no was committed the cir- exception, with if such court, error, cuit of de- nying ground for a new trial on the motion the verdict was excessive. ques-
We therefore shall address ourselves to the authority, tion of whether or not this court has in an damages personal injuries, action to recover for tried by jury, to re-examine the no facts, where error was alleged committed the trial other than the support error that there is no evidence to the verdict for the full and enter a for a less amount, jury, ground amount than on the allowed appeared the verdict was or to be excessive. this Can authority court in the case at under bar, section say “affirmatively Constitution, article of our support there is no $15,- evidence to verdict” for 000, but that there is some evidence to a ver- or other $7,500 dict some definite amount less than *11 $15,000? Oregon specifies 2-802, 1930,
Section Code certain grounds judgment may a be which set' aside and granted. grounds a new trial Two of these are as fol-. “ damages, (5) appearing lows: Excessive to have been given passion prejudice”, influence of under the or Insufficiency “(6) justify of the evidence to the * * part orig- *.” This section is a verdict of the procedure of 1862, inal code of civil and has not been materially amended. Oregon Railway in Nelson v.
Mr. Thayer, (9 Navigation referring 141 P. in Co., 13 Or. & right of this court to reduce the verdict on to the the ground excessive, that said: it was
281 made the issues to were relevant findings “These counsel contended the appellant’s but in the pleadings, amount the not they justify that did on the argument fact, a matter be so as This recovery. may of the This court matter of as a law. but could not so find we that the verdict to find be authorized hardly would a matter as determine, it could was too unless large, it should or which amount, limit, the law, precise to do with nothing have have been restricted. We in- can I not see how we can case, yet facts of terfere facts. review the unless we judgment with duty it excessive, is the jury Where the verdict of but its refusal nisi prius aside, of the court to set it this but Nothing do so can not be reviewed court. can transcript appearing upon law questions have been may The herein reviewed here. verdict un- have allowed much than this court would larger facts in case, der the evidence or view aside, no to set it right found Still we have jury. thereon. or reverse or entered modify fact, widely are and however judges our view theirs matters nothing. with might disagree We have no to invade their however right province, be that have committed error.” sanguine may they we This above con court has ever since the decision code, this section of our sistently held, construing not court’s exercise of will review circuit trial on the discretion new refusing grant v. McQuaid Port ground the verdict is excessive: Co., R. R. land & 19 535 P. Vancouver 26); Or. Co., 21 P. Kumli v. Southern Pacific 505, Or. Endicott, Co. v. Bay Coos Or. 637); Co., v. Sorenson Power Oregon 61); Co., Lumber Ronde 48 Or. 10); Lindsay Grande Albright Keats Auto P. 758). 134 (166 *12 Hale, this Timmins v. In 770), set the of the trial court to right to referring damages ground a aside verdict on the that the were excessive, said: may grant
“The
a
contention that the trial court
damages
new trial
of his belief that the
are
because
wholly
is
excessive is
untenable.
In this case there
nothing
any
showing
upon
in the record
misconduct
part
jury.
of
were excessive and because
The
is that the
whole contention
damages
excessive,
swayed by passion
prejudice.
must have been
statute
or
The
prescribes
judgment may
‘A former
that
be set
granted
aside and a
trial
new
on the motion of the
party aggrieved,
any
following
ma-
causes
terially
rights
affecting
party:
substantial
such
* * *
damages, appearing
5. Excessive
to have been
given
passion
prejudice’.
under the influence of
or
Sec-
power
tion 174. The
to set aside a
on a ver-
upon
particular ground
away
dict
this
was taken
from
(Art.
the courts
the amendment of the Constitution
3),§
by jury
which
that
fact
declares
‘no
tried
any
shall be otherwise re-examined in
of this
court
affirmatively say
state unless the court can
that there
is
no evidence
the verdict’.
“In Buchanan v.
A.
Lewis
Hicks Co.,
this amendment of the Constitution, trial courts no longer power grant have the new trial because of damages the belief that the awarded are excessive, and judgments upon appeal upon that can not be reversed ground. provision again This constitutional was Sigel Ry., L. & considered this court v. Portland Pac. where the same rul- ing Ar- this was in effect made, held in the nothing chambeau case. since Hence, there in showing part jury, record misconduct on the proper judg- was not for the court set aside the ground damages ment that were exces- sive and its action can not be sustained on that ground.” right of the courts of this state judgments ground they
to set aside on the are ex- *13 since times numerous this court been before cessive has our 3, of Consti VII, section of article the amendment in Buchanan Mr. in 1910. Justice tution Moore, P. 780, Co., Or. Lewis A. Hicks 1191), stated: has law an error at an action “If in the trial of upon appeal by from the
been committed the judgment supreme an examination from the court testimony, all other instructions, and entire the matters material what can determine decision, to the disregard may reached, been should have conclusion thereby justice would substantial errors, such when proper en- promoted, verdict to be and direct right, upon appeal, that the thus be seen tered. It will to correct upon of law com- rests an error by the re-examina- court and not the trial mitted except jury, any by cases where tried tion of fact say affirmatively supreme is no there court can support of the the verdict. clauses evidence to amended referred to should of the Constitution section together opinion, order in our be construed not, * * * herein. the verdict overturn comes within the at bar the verdict “In the case affirmatively can not and as we announced, rule thus supported by say evi- is not of the the conclusion prohibiting the re-examination the amendment dence, necessarily supported mod- fact thus tried and part L. L., subdivision that 5, ifies section O. ‘Insuffi- reads as follows: 6 which of subdivision justify ciency the verdict or other of the evidence to decision’.” Again in Nelson v. Helens Mr. St. Moore,
Timber 66 Or. authority court of the trial consideration the had under ground grant the verdict was trial on the a new insufficient the evidence excessive and sufficiency referring support to the In the verdict. said: evidence, he “In the case at bar one of the facts tried jury tiff in damages by upon plain- was the amount of suffered consequence injury inflicted him alleged negligence of the defendant. From a care- testimony given ful examination of all the at the trial, affirmatively say we can not there is no evidence to particular, the verdict. In this at least, organic quoted clause of the law hereinbefore has been part modified, so that of subdivision 6 of section L. ‘Insufficiency O. L., which reads as follows: justify applicable, *14 evidence to the verdict’, is not when supported by the verdict is evidence. The trial court, properly powerless therefore, concluded that it was under judgment the facts established to set aside the grant ground assigned.” and to a new trial on the Sigel Ry., In v. Portland L. & P. Co., 67 285 Or. (135 866), the trial court set aside the verdict, be granted cause excessive, and a trial. new Mr. Justice reversing in the circuit commented as Bean, follows: judgment
“The
on the verdict could not be set
aside without the re-examination of a
of fact
by
jury upon legal
which had been tried
evidence
proper
and under
instructions as to the law: Forrest
Ry.,
v.
(129
Portland
L. & P. Co., 64
Or.
Pac. e
1050). Therefore, under th rule announced in Bu
(134
chanan v.
1191),
Hicks Co.,
In the contention re-examining procedure and enter- the evidence its right ing judgment, depriving the defendant by jury, opinion stated that no one had to a trial desiring right appeal, one a constitutional right In so far as to exercise that did so cum onere. respondent remarked that concerned, was court complaining that until he did so he was not question might academic. be considered as
In Kveset Grace construed the instructions of the trial court this court equivalent telling sympathy as injured one an element to be considered in de- termining damages This was held to be suffered. error. that it could not this court stated Nevertheless, affirmatively say *15 was excessive. The that verdict plaintiff as a Pott’s in that case received what is known for $3,100. fracture of the ankle. The verdict was referring not In to what other courts had held leg, of one this court excessive awards for the fracture amounts from to $9,000. stated that the varied $350 Malpica Cannery Supply Co., The case of interest in this is of considerable plaintiff jury $12,- discussion. There the awarded in the lower court for a 000 and a motion was made ground verdict excessive. new trial on the that the was judg- denying stated in the The court this motion entry no evidence introduced ment there was which, justify would a verdict in excess of $2,000, but opinion power that the court was of the that it had no to set aside the verdict because it was or excessive, require plaintiff part to remit that in excess of $2,000. appeal, referring Hoag
On the after v. Wash- ington-Oregon Corporation, supra, noting and majority opinion expressly upon “the was founded prejudicial giving fact that there error in the was this court calls to article instructions”, attention says: section 3, and purpose prohibit “The of this was to amendment setting modifying judgments
courts from aside or juries, founded verdicts of there is no where prejudicial error in the In this record. case the properly assignment and there is no instructed, except error as to the amount the verdict. Under jury only such circumstances, it was for the to fix the plaintiff’s damages, amount of which it did a unan- imous verdict.
*‘ opinion plain- The circuit court was of the that the prob- tiff should not recover more than it is $2,000,and juries might able that other return a verdict for much plain- less than $12,000; but the fact remains that the injured, disability permanent, tiff was that his pain suffering that in addition to his the use of greatly impaired. his arm is There is no fixed stand- ard as to the amount that the should recover injuries. jury, for his That is a of fact for the juries and different would return different verdicts under the same state of facts.
“The record shows that the defendant had fair only exception and its trial, is to the amount of the nothing verdict. There is in the record to indicate passion prejudice. Although opinion or of this damages might court the amount of awarded be deemed affirmatively say excessive, we can not that there is *16 case, it. the record in the no evidence to this court is Under grant judgment powerless relief. The to is affirmed.” 815), Mr. Welsh,
In Mount v. 118 Or. had been said numer- Brown reaffirmed what Justice prior ous times that “it is well settled that thereto, right judgment this constituional to correct under provision is based error of law committed the trial court”.
In Crematorium, Gillilan Portland 627), plaintiff a verdict for De- $2,500. had motion trial denied, fendant’s for new but sponte judgment court sua reduced the amount of the ap- Both the defendant and the $1,260. pealed. alleged This court decided that errors assigned by pass- the defendant were without merit. In ing upon plaintiff’s cross-appeal, Mr. Belt, spealdng for the court, said: cross-appeal assigns
“Plaintiff
in his
error in re-
ducing
judgment
By
$2,500
$1,260.
from
virtue
Oregon
Article
Section
Constitution,
3c
supreme
authority,
court has
material
where
error
retry
exists
a
a record,
the case and render such
judgment
opinion,
in its
as,
should have been ren-
Hoag Washington-Oregon
dered
the court below:
Corp.,
Pac.
Pac.
Or. 588
Mount
v. Welsh,
“The $1,260 entered for is reversed and judg- the cause is remanded, with directions to enter ’’ plaintiff. ment for favor of $2,500 *17 288 Sears,
Mr.
in
162
Justice Coshow
Noble v.
Or.
809), disposed
alleged
of the
error of the
refusing
grant
trial court in
a
as
to
new trial
follows:
assignment
“The sixth
in
is that the court erred
overruling the motion for a new trial. The
trial
new
already
was based
the
errors
and
considered
plain-
claim of the defendant that the amount allowed
passion
tiff is
and, therefore,
excessive
the result of
prejudice.
and
believe there is
We
no merit
defend-
regard.
ant’s contention in that
Section
VII,
Under Article
having
of the
3c,
Constitution,
found no error
liberty
in the conduct of the
this court is
trial,
not at
investigate
Hoag Washington-Oregon
to
the facts:
Corp.,
Pac.
Pac.
Mount
In Wood v. Mr. answering Justice the contention that the evi- Brown, support dence was insufficient to said: verdict, “Were we to determine this cause from the whole might contrariety of the our evidence, verdict be in jury. try that returned But are we not to says jury case de novo. The law that the the sole are judges credibility of the witnesses, and of the testimony effect value and to be attached to the of each and all of them. Furthermore, view of the evidence adduced, this court is not authorized re-examine the ‘affirmatively for facts, the reason that we can not say there is no evidence to the verdict’. Ore- gon § Article Constitution, VII, 3-c.” Ry. Pierce v.
In Northern Pacific plaintiff 62 A. L. R. recovered against $2,500 defendant its failure Pullman to deliver accomodation to her. Mr. writing opinion majority for the Coshow, disposed of the contention that the verdict was following language: excessive complains large “Defendant that the verdict is so apparently passion preju- the result of testimony without indicates dice. she arrived at Stevenson out when was worn quite period humil- of time. She was ill for and was discovering predicament by passengers her
iated purchasing sleeper assisted her in their kindness night on the train. We believe last she was for her the large, are au- not believe we to be but do the verdict thorized under provisions of our Constitution jury fairly presented to the interfere. The case was judge the facts: is the sole Constitu- and the § 3c.” Article tion, *18 Oregon Stages, Inc.,
In Martin v. 291), court had the lower this court held denying for a trial. a motion new error in committed proceeded and to re-examine record It therefore plaintiff recover. fix entitled to the amount which 267), Schilling, in- 130 Or. Lane v. Finding that the instruc- volved an action for libel. evi- re-examined the tions were court erroneous, judgment $4,000. dence and reduced Oregon-Washington Donaghy v. Mr. in Justice McBride, (288 P. 291 P. Co., . N. & R by 1017), holding error had been committed after VII, Article of 3c, the trial stated that “Section authorizes this our as amended Constitution, in the lower error has been committed court, where appeal the case on the facts on court, to re-examine judgment equitable to enter such as seems under and the circumstances”. Wychgel Steamship
In 135 Or. States judgment $30,- recovered on the $15,000 this court reduced which was ground There was no error com- that it was excessive. trial court. Mr. Chief mitted Bean, referring question of the excessive amount of to the prefaced his remarks as follows: award, assigns strongly “The as error defendant and urges that the evi- verdict is excessive and there is no support dence to the amount of itthat the court must of burden decide this under the federal rule Oregon proof, and that even rule, under section Oregon, 3-c, Article of the which Constitution provides, by jury alia, inter ‘that no fact tried shall be unless the court dence to court of this state otherwise re-examined say affirmatively there is no evi- can the verdict’.” This and this in re- statement the action of court ducing must be considered the amount light opening opinion, statement of the reading as follows: having bring
“Plaintiff action un elected to this der section 33 of the Merchant Marine Act of 1920 and Liability Employers’ rights the Federal his Act, obligations depend upon principles in law as terpreted applied in the federal courts: New Or E. R. leans & N. 535, S. 367 Harris, Co. 247 U. S. Ct. 1167).” 62 L. Ed.,
It is also in this to consider instructive, connection, Harris, v. case of & N. E. R. R. Co. New Orleans foregoing quotation. It was there referred to in said: long
“The federal courts have held that where suit brought against injuries an em is a railroad for ploye resulting negligence, negligence from its such plaintiff is an affirmative fact which must establish. Nitro-Glycerine Patton v. 524, 15 Case, 537; Wall. Looney Ry. Texas v. 658, 663; & Pacific 179 U. S. Co., Metropolitan 480, R. R. 200 Southern Co., 487; U. S. Ry. proceedings Bennett, 80, Co. v. 233 U. S. 85. In brought Employers’ Liability Act under the Federal
291 applicable depend upon obligations and rights and applied interpreted and principles in as of common law negligence recov essential to and courts; federal Ry. ery. 492, 233 S. Horton, Air Line v. U. Seaboard Ry. Gray, 339; 241 S. 333, U. Co. v. 501, 502; Southern 147, 172. Winfield, 244U. S. York R. R. v. New Central Co. 170, S. Winfield, Erie R. R. v. U. Co. 150; holding principles in and our Cen These established Ry. 512, tral we proof S. White, Vermont Co. v. U. think make of burden it clear that subject not to con is a matter of substance and trol of the several states.” laws deciding Wych mind,
That this court had in gel pointed is further out, the distinction above case, apparent opinion, Engfors from the citation, 337). Steamship P. Co., v. Nelson Or. Ry., Hopkins See v. P. also, S., S.&. (2d) 2 P. Skaggs, (2d)
In Emmons v. 70Or. disposes Mr. of the conten- Chief Justice Bean that this court should re-examine the facts on the tion ground that excessive, the verdict the follow- was ing language: urges
“The find defendant that the court should ought this is a case where it to exercise the powers Oregon Constitution, in it Article vested retry § VII, 3, the case.- We find no error in record. Therefore this court is not authorized to re- try testimony the case. The tends to show that injured. seriously permanently Un- alleged der the constitution, excessiveness questioned, verdict can not be unless the court is in affirmatively position say there was no evidence Cannery Malpica Supply the verdict: 596).” Pac. 95
Mr.
Associated Oil Co. La
Rossman,
(2d) 597),
Branch, 139
states that
*20
*
* *
Oregon
“Article
Section
Constitution
provides
discovery
upon
if
this
error,
opinion
‘shall be of the
that it can determine what
judgment should have been
in
be-
entered
the court
low, it shall direct such
to be
”.
entered’
Knight
Beyers,
See
also,
this connection:
70
v.
(134
787);
Meyers,
Or. 413
P.
Johnson v.
91
179
Or.
(177
631);
Mortgage
P.
Farmers’ Loan
v. Han
&
Co.
(260
999);
Mortgage
sen,
I have here to out fact that .the authority this court has never before assumed under section 3, article VII Constitution as amended, to re-examine the evidence in case and enter a judgment different from that based on the verdict unless the lower court has committed some parties litigant deprived error which the have been provision aof fair trial. The constitutional above re jurisdiction ferred to does not confer this court retry every law action, same manner as suits equity, judgment according opin and enter to our may just equitable. appeal ion of what For on only properly assigned in actions at law is errors Smyth, that will be considered: v. Or. Taffe 308); Bank, Marks First National 84 Sumpter Valley Ry. Service prior We have seen that article 1910, when VII our this court amended, Constitution could not refusing grant review the action of the court in trial *21 ground trial new on the of excessiveness of the ver- adoption dict. the Since of the amendment of the 1910, longer, according trial court no to the decisions of this already pointed any authority court as out, has to grant ground a new trial on the that the is verdict being deprived authority, excessive. Before of this trial court could not, when no error had been com- mitted but the verdict was excessive, re-examine the judgment facts and enter for a less amount than that jury. found It could, however, ovérrule a mo- tion for a new trial on condition that the re- designated mit all in excess of a amount: Sorenson Oregon Co., Power P. providing
Section
article
of our
I,
Constitution,
right
that “in
by jury
all civil
cases,
of trial
shall
repealed by
remain
has not
inviolate”,
been
section
article
VII: State v. McDonald,
By procedure such this court would be substitut- ing opinion jury. may its for that of the It that, opinion, our the verdict is excessive, or the evidence is insufficient to the verdict to its full amount, or—and this seems to me a new and devious method of support a
reasoning verdict no evidence to —there amount. Section of a certain in a sum in excess re-examining prohibits facts us from article grounds, should not we wherefore on the first two sophistry through attempt result the same effect and circumlocution. in 1910 was was amended
Before our Constitution duty for a new trial court on motion of the trial against weigh if verdict was evidence and grant weight a new trial: the clear evidence *22 (57 634; P. Multnomah 35 289 Serles, v. Or. Serles 389). (89 County 204 P. Co., 49 T. Or. v. Willamette weight Following of the the relative the amendment jury: solely testimony for the Schneider is a matter 107); (180 Tapfer, P. Mitchell v. South v. 92 520 Or. (209 718); v. Sather Co., ern Pacific jury (220 740). the If the is Giaconi, pos judge weight how is it evidence, of the sole of the determining amount of dam the sible for this court, injury personal by plaintiff ages case, in a suffered province invading the decide the without weighing jury? the not done without If it can be of the testimony, precluded from undertak this court then Surely ing and of twelve men the the task. seeing and the witnesses at after arrived women, testimony, weighing be much more satisfac will their reading may tory any guess make from we than same. provides Oregon that, 1930, Code 2-308, Section ** * jury, charging inform court shall
“in . judges ques they jury of all the exclusive are held that this has this court fact”. At no time tions of repealed, superseded or modified. been mandate has Mason, Mr. v. Casciato Burnett, (138 answering suggestion that retry this court said: case, argued
“It is
should
brief, however,
we
report
testimony accompanying
take the full
exceptions
the bill of
in effect,
and
under Article VII,
retry
Section
of3,
the state Constitution,
the case our-
selves on the evidence thus
and
con-
adduced,
reach a
by
clusion of fact different from that returned
jury
properly
in the verdict. We can not
do
this,
province
jury
it would be to invade the
by
emasculate the institution of trial
that method
which the Constitution of the state, even in its amended
preserved.”
declares must
form,
The fervor with which the federal courts have
guarded
upheld
right
the constitutional
of trial
following
is well illustrated
cases: Slocum
v. New York
Ins.
Hodges Easton, U. S. 408 S. Ct. 27 L. ought preserving Ed. We not to be less zealous in *23 guarantee rights this “fundamental and liber people”. regard ties of Our declaration in this sounding tinkling should be more than “as or a brass, cymbal”.
“A said Mr. verdict”, in Justice Burnett Forrest Ry., v. Portland L. & P. Co., Or. 240 P. 1048), except “that is immune from re-examination every for an entire want of evidence is not may by body decision that be reached of twelve men happen jury' who to sit in a box and hear the testi-
mony presence of' a but it means one prescribed for a the form of law as reached under meaning from of the constitution trial within * * * beginning. be must An invulnerable verdict jury regularly impaneled, as a conclusion of fact rights parties a trial in of all the result of which testimony respect or exclusion in to the admission particulars material under been in all have observed proper as to the law”. of the court instructions 195); P. Rader, 62 also, v.
See
State
P.
Boat
65 Or.
Wakefield,
Sullivan
Ry.,
right
L.
&
v. Portland
strange
to de-
for this court
It
seem
indeed
would
re-
“immune from
which is
scribe the kind of verdict
instances above
it has done
examination”, as
might
many
to which reference
cited and
others
decisions
the effect of such
and then to avoid
made,
saying
by merely
inhibition
and the constitutional
sup-
opinion,
is insufficient to
the evidence
in our
that,
greater
port
than a
sum.
amount
certain
a verdict
an
litigation
Many unjust
corrected,
can be
results of
grant
right
it has
court will exercise
if the trial
power
court is described
of the circuit
a new trial. This
opinion
Edmunson,
“The rule thus in our established enlarged by misappli- some be so when reason of that, exception principles no cation of the of law to which consequence has been or in of some inadvertence taken, if the court called, to which attention has not been properly party that a not his cause satisfied has had presented, justice dispensed all should which setting cases of a ren- sanctions aside granting trial, dered when such Article verdict and the of a new of the lower court not violate
action does Oregon Section Constitution respecting quantum of evidence.” See also: Cathcart v. Marshfield, 138); Duniway Hadley, Veazie v. R. Columbia etc. R. logically It is obvious that not we can hold that we right, have the when no has been error committed the circuit court, to re-examine the facts tried jury, reversing previous without our decisions. We can by suppositions not realities. decide Nor can we arro- gate power possess. to ourselves which we do not judgment appealed from should be affirmed. J., Bean, J., C. concur.
Rand,