Kelty v. Fisher

199 P. 192 | Or. | 1921

HARRIS, J.

The foregoing statement and the narrative found in the opinion rendered by us in the Fisher case should' be supplemented by a further explanation of the circumstances attending the supposed stipulation. The jury-box had been filled preparatory for the voir dire and a request for written instructions had been made when the court said:

“Something has been said about a consolidation of these two cases, the Johnnie B. Fisher case and the Syron case — trying them together.”

Mr. Welch (one of the attorneys for the administrators J~then said:

“If the court please, the two cases, that of Dr. H. E. Kelty against the administrators of the estate of Johnnie B. Fisher and the case of the administrators of the estate of George Syron, deceased, against Dr. H. E. Kelty, are identically the same, with the exception of the names of the decedent, therefore we would like to enter a stipulation to the effect that the two cases he consolidated and tried together, the judgment in one to stand as the judgment in the other.”

The record continues and reads as follows:

“Mr. Hay [one of the attorneys for the claimant]: Is that to be considered a stipulation?

“Court: Mr. Welch has made the stipulation that—

“Mr. Hay: That the judgment in the one case shall stand for the judgment in both cases — the verdict in the one case of Dr. H. E. Kelty against the administrators of the estate of George W. Syron shall stand as the verdict in the case of Dr. H. E. Kelty against the administrators of the. estate of Johnnie B. Fisher.

“Mr. Corkins [An attorney for the administrators] : I expect we had better try the Johnnie B. Fisher case instead of the Syron case.

“Mr. Hay: No objection; both are practically identical.

“Mr. Welch: Simply a matter of picking the case, that’s all.

“Court: The stipulation is that the same verdict shall he recorded in 'the second case as in the first, the verdict of the jury. One verdict shall stand as the verdict in both.”

The voir dire examination of the prospective jurors having been completed and twelve qualified persons having been accepted, they were sworn to try the case as jurors and the trial proceeded. One of the attorneys for the claimant made an opening statement to the jnry. Mr. Corkins informed the court that “we will waive an opening statement” and then continued as follows:

“I don’t know that I understand fully the purport of this stipulation — was it that the two cases be consolidated and tried together, that the evidence in this case could apply as the evidence in the other? They are seen to be identical except for the names of the persons. And that the verdict in this one should be entered as the verdict in the other case with a change of names only — it is my understanding — it is my guess.”

At this point one of the attorneys for the claimant interrupted and among other things he said: “That is not what he stipulated.”

It is not necessary to give a complete account of what was subsequently said by the respective attorneys and the court, for it is sufficient to say that the court explained to the parties that he understood that the parties agreed “to try this one case and then the verdict entered as the verdict in the other case”; and the court held that the stipulation as so understood “will have to stand now.”

It is plain that the parties misunderstood each other; and it can be readily seen by a reading of the transcript how easy it was for the attorneys for the administrators to understand that the stipulation provided for a consolidation of the two cases and one trial and one verdict; and it can likewise be readily seen how easy it was for the attorneys for the claimant to understand that the stipulation went no further than the words repeated by Mr. Hay:

“That the judgment in the one case shall stand for the judgment in both cases — the verdict in the one case of Dr. H. E. Kelty against the estate of George ~W. Syron shall stand as the verdict in the case of Dr. H. E. Kelty against the administrators of the estate of Johnnie B. Fisher.”

1. There was ample reason for the trial judge to have the understanding expressed by him. It is clear that all concerned were acting in good faith; but it is equally clear that they did not understand each other and that the misunderstanding became known to all before any evidence was offered. Nothing had occurred to place the claimant at a disadvantage. His position was not altered or modified or affected in the slightest degree. The reversal of the judgment rendered in the Fisher case necessarily compels a reversal of the judgment in the instant case, even though it be assumed that the parties entered into a "binding stipulation. But regardless of the disposition made of the Fisher case, the judgment in the instant case must be reversed for the reason that, in the attending circumstances, the administrators should have been released from any stipulation that may have been entered into.

When it became known that the parties misunderstood each other, the court should have required them then and there to come to a definite and unequivocal understanding; or in case of their inability to agree, the court should, have annulled the supposed stipulation and released the administrators from it: 36 Cyc. 1293, 1294.

The judgment is reversed and the cause is remanded for further proceedings not inconsistent with, this opinion. Reversed and Remanded.