*1 3, 1977, remanded March Argued reversed and October ROGERS, Cross-Appellant, Respondent,
HILL, Appellant. 25019) (TC SC P2d 328 *2 [ 492 ] Hershiser, & War- Mitchell Edward H. Warren brief for filed a cause and Portland, ren, argued appellant. Portland, argued Bennett,
Deane Stemdale Clift, E. Michael for respondent, cross-appellant. cause Portland, filed the brief.
LINDE, J. *3 J., in the result.
Bryson, joins joined J., concurring opinion, Tongue, specially Lent, J. Holman, J.
Howell, J., part, joined dissenting ] 492-a [ *4 LINDE, J. deputy Hill, sheriff in Multnomah
Defendant a damages judgment County, appeals for from a plaintiff Rogers for on of action causes awarded prosecution. battery The and malicious assault litigation and parking lot arose from altercation in an apartments Rogers resided, when he where argument Hill and intervened between Officer alleged- Rogers In the one Curtis. course of events ly eventually Hill, arrested, and struck thereafter Rogers prosecuted acquitted. resisting for and arrest against subsequently present brought Hill action deputy sheriff, Stewart, who had trans- and another attorney report for mitted Hill’s written to the district against prosecution. voluntary nonsuit Plaintiff took a jury against Hill, In his returned Stewart. action plaintiff and verdicts for his claims of assault on battery against prosecution and him on malicious a claim of false arrest. respect action, With to the first cause of for assault battery, assigns defendant as error the trial jury only court's instruction to the that ~the evidence
in this case is that
the defendant did strike the
plaintiff,"
striking
battery
and that
was a
jury
which defendant would be liable unless the
found
privileged.1
that it was
The evidence to which the trial
plaintiff
court referred was the
and his
by defendant,
wife. It was not contradicted
who chose
testify
However,
not to
in his own behalf.
defendant
battery
contends that the occurrence of the
itself was a
jury
issue because the
was entitled to disbelieve
plaintiff
even the uncontradicted
and his
especially
they
parties.
wife,
since
were interested
may
be
and when a
whether
give
effect to the uncontradicted
directed
conclusive
is that
only
this case
evidence in
you
1 Now,
instruct
I
striking
constitute
would
did strike
defendant
battery,
the defendant
or,
say,
constitute
battery
I
does
should
you
the defendant
find that
damage unless
liable
be
would
the contact.
privileged to cause
*5
testimony
proponent
in
a fact
issue
of a
46,
Ellis, 230 Or
in Rickard v.
this court
reviewed
(1962).
it is
concluded
P2d 396
The court
368
general
equally
rule that
incorrect
to state as
prove
testimony
the
taken to
must be
uncontradicted
extreme,
the
or,
at
the other
fact
issue
invariably
credibility
testimony
for
an issue
of such
is
jury.
"whether uncon
Instead, Rickard held that
the
jury’s
preclude
testimony
the
as to
tradicted
is such
testing
the witness or
the
function
depend upon
gave
the nature of
it will
witnesses who
particular
in the
case which
the issue
purports
reaching
at 52. In
to resolve.” 230 Or
quoted
opinion
conclusion,
from
O’Connell’s
Justice
opinion
in Ferdinand
Chief Justice Vanderbilt
323,
Agricultural
482, 126 A2d
Co.,22
Insurance
NJ
had
v.
previously been
62 ALR2d 1179
which
Seely,
331,
Administrator, 215 Or
in Wiebev.
followed
(1959):
343-344,
terested improbable, not is from and to be drawn inferences nature, is no its or there extraordinary surprising truth, it as the ground hesitating accept other verdict dictated denying there no reason for 498, 126 A2d cases]. at [Citing .... 22 NJ such evidence at 332.2
See
570,
also
P2d
Foster
385
Inc.,
v.
Or
Agri-Chem,
235
Co., 265
(1963);
Petten Lbr.
Or
184
Palmer
Van
(1972);
P2d
v. United Medical
420
Wattenburg
Lab.,
P2d 113
effect
mere statement
Although
na-
"will
uncontradicted
depend
*6
which the
ture of the issue
the
case
particular
little
testimony
precise
to resolve”
purports
gives
counsel, Rickard itself
trial courts or
guidance
many
two factors
among
continued
emphasizing
of
availability
that bear on the
the
evidence
question:
the likelihood
contradict
the
testimony
offered
the
litigation might
witness’s
interest
the
him to
were reiterated
tempt
testify falsely.3 They
308, 317-318, 409
346
Yant, 242
P2d
Schmitz v.
consortium,
(1965),
for loss of
concerning damages
"of so
court
relations
the
considered
involve
intimate
of
plaintiff’s
a character” that
would almost
or that of his or her
testimony
spouse
course, not
self-
only
be a
Of
always
jury question.
difficulty
obtaining contrary
interest but also the
Streight
Conroy,
See
evidence indicated that result.
(1977),
claim of loss
289,
Wigmore § on at 305-306 ed Evidence question distinguishing Other factors mentioned in discussions testimony, gaps or include whether there are internal inconsistencies directly from whether the concerns events testified to inferences issue events, improbable, and described are unusual or those whether events Bobbe, testimony expert opinion. See The Uncon whether involves (1934); Witness, Testimony L tradicted an Interested 20 Cornell Q Brizius, Testimony, Law. on 1959 Trial Directed Verdicts Uncontradicted 65; Credibility: Note, A Guide The Power the Court ToDetermine Witness Evidence, Proponent Pa Directing 107 U Problem in a Verdict Annot., (1958); L Rev 217 62 ALR2d
[495 ] pertinent The same factors are in this case. they correctly applied ques- Whether tion. were ais close Necessarily setting application their in a trial judgment by court, involves the exercise of the trial but is not a matter of The fact at issue discretion. was whether defendant hand struck Hill’s Rogers’s grab- testimony face. that he Plaintiffs "trying get keep bed Curtis him arms to from back at the officer.” continued: He approached myself
The officer Dender and he Curtis swing hanging took a at Dender Curtis while I was onto him. And I agot graze Dender Curtis ducked down and go. on the face and when I let that’s His continued with additional details. Deb- Rogers, plaintiffs wife, ra that she saw testified swing Rogers defendant at while Dender Curtis holding Denny Curtis’s arms. ducked and "Then [Hill’s] fist hit Bob.” counsel did not Defendant’s part on of her cross- Moreover, examination. did not call defendant he Rogerses’ himself as a witness tes- to contradict timony, though ing, alleged the only readily strik- contradiction of occur,
if it did not was not but uniquely available to the defendant.4 might jury in this case
Nevertheless,
think the
we
striking
plaintiff’s
if
version of
have disbelieved
*7
opportunity.
they
given
in issue
The acts
had been
setting
tension after
of emotional
occurred
might
participant
in a manner
events
recall
each
were
role. There
or her recollected
with his
consistent
report and
written
officer Hill’s
differences between
aspects
Rogers
other
Mr. Mrs.
on
and
episode.
stated
that the instruction
It follows
1, above,
error.4a
note
his
but
limited
as an adverse witness
4 Plaintiff called defendant
bearing
for false arrest and
on the causes of action
questioning matters
consequence, defendant’s cross-examination
prosecution. In
malicious
similarly limited.
his own counsel was
this issue
not decide
dissenting opinion states that we should
4a A
given.
it was
exception
after
to the instruction
defendant
took no
because
The
of the
for malicious
problem
deputy’s liability
is more
The tort consists
prosecution
complex.
from an
initiating
criminal
procuring
proceedings,
cause,
motive and without
improper
probable
against
who is
another
not
of the offense
and
guilty
charged,
who
a favorable
ultimately
gains
termination
See,
Whitbeck,
791,
proceedings.
e.g., Rose v.
277 Or
463,
In this Hill Officer filed a "Crime Report” two "Custody Reports” the arrest of Curtis following and Rogers and left further to others. The steps Curtis, on Custody Report another signed by officer who had scene, McDade, been called to the listed the arrest”; charges "harassment” Hill’s "resisting report on listed Rogers conduct.” The "disorderly Crime set forth the Report officer’s version of incident in some detail. In a box at head of the had, however, colloquy There been extensive between defendant’s counsel instructed, judge during and the trial before which counsel very objection precise point appeal made clear his on the now raised on disagreed equally point the court made it give clear that he with this and would objection. despite the instruction defendant’s purpose exception party of an is to let the court know that the steps persuaded are not and to let the court take whatever corrective then aid, justified procedural requirements, available. Like most it is as an not obstacle, assuring plain as an a correct trial. In this case it is that the point up fully apprised defendant’s made his trial court was and had taken, Though exception properly mind on the issue. should have been formality prejudice and its did not would have been a mere omission Furthermore, point no or affect the court’s actions on the at issue. proper by plaintiff contention is made that defendant failed to take exception instruction.
[ ] 497 as Hill the Offense” "Type form identified printed stated that of the narrative body "harassment.” The he arrest informed that was under Hill had Curtis "for he under arrest was Rogers harassment of Mr. custody with my taking part interferring his Curtis,” Rogers told Hill had McDade These the listed charges.” be taken in "for would Deputy the work placed were basket reports such Stewart, was transmit whose task assigned A attorney district prosecutor. deputy reports these reports the information subsequently, Hill, prosecuted further with but without consultation which he arrest” of "resisting on charge Rogers acquitted. Defendant contends on he these facts entitled to a directed verdict he did not because the prosecution initiate He actually brought. cites al, Humbert v. Knutson et 133, 224 P2d rule for the who informa- gives that one merely tion on which an prosecutor independent makes charge decision to an offense is not for institut- liable As there from the second ing prosecution. quoted Torts, edition of Prosser’s Handbook the Law rule also when the for an applies authorities prosecute different offense from that presented by private informant.5 Id. at 138. For the rule on general prosecu- discretion, Humbert also Restate- torial quoted (1938).6 Torts, However, § ment Comment g Restatement deals quite with initia- explicitly only informants, tion of criminal proceedings by private (4th Prosser, § ed See W. the Law of at 836-837 Handbook of Torts 1971). 2d, Torts which he was the Restatement of 6 Both Prosser informant, actually by the Reporter, limit the rule to information believed giver prevents theory that known to be false on the information may the effect of intelligent id. be exercise of official discretion. See That information, but, Lacy pointed the decision in after Professor out false Humbert, quality of logically independent of the moral Survey, Oregon falsity. Lacy, its Torts —1960 belief of truth or informant’s 278, 295 L Rev and that is also the focus of the other sources discus- sing problem.7 *9 initiating
A law enforcement officer’s role in a prosecution private is not identical to that of a com plainant, liability nor is the measure of his the same. distinguish Here we must between the issue of the prosecution, essentially "initiation” of a which is a linkage of the causal between the defendant’s process, acts and the start of the criminal and the police privilege different issue of a officer’s for official enjoyed by private acts which is not a defendant. The privilege extent of this unsettled, and since defend privilege, ant express does not invoke such a we no view whether it would be available to him here.8 But on the issue of "initiation” there can be no doubt that against defendant plaintiff set the criminal law motion complexity only here. The in the case results ultimately, from the fact that and unsuc cessfully, prosecuted legally charge on a different from that stated defendant. participant
Even as a in the law enforcement process, an private officer is no more liable than a person’s prosecution informant for charges quite a on different from those initiated the officer. No doubt responsibility measure of his for the ultimate prosecution may sometimes be difficult.9 But it is not 2d, 653, § "private 7 Restatement of Torts person refers to a who procures initiates or proceedings.” g institution of criminal Comment speaks "private person gives this section public of a who to a official supposed information of another’s criminal misconduct.” 8 recognizes privilege public prose The Restatement an absolute cutor, initiative, peace § but not for a officer who acts on his own id. 656 d, Prosser, privilege and Comment and defendant claims no here. also See 837-838, supra § conflicting note 119 at and the in this court in view Gerking, rehearing, Watts v. 111 222 P 318 rev’d on 228 P (1924). generally Annot., See 28 ALR2d 646 instance, offense, for would seem lesser included Prosecution for a Bryan, App 12 Ill original report. attributable to the (1882), Frankfurter Cf. justice peace had issued a "so-called mittimus” in which larceny. complainant’s disorderly private accusation of on a conduct difficult in this case. Deputy Hill’s Crime Report, above, could quoted be read to extend to a possible charge that Rogers participated Curtis’s resisting arrest as well as to the general charge "disorderly Moreover, conduct.” Hill was the primary prosecution witness in Rogers’s trial on the charge of resisting arrest and there is no indication that he suggested prosecutor An charge inappropriate. active part continuing unfounded criminal pro- is sufficient ceeding for this tort. See Restatement 2d, § Torts 655. Defendant’s motion for a directed verdict was denied. correctly
Defendant’s remaining assignments of error com plain the jury was not instructed on what consti tutes arrest, resisting on charge which plaintiff was prosecuted, as defendant Defendant requested.10 was entitled to have the jury consider whether plain *10 tiff was in fact guilty of the offense for he prosecuted. Plaintiff’s acquittal does not prevent re trial of that issue in the tort Seines, case. Shoemaker v. supra; Restatement 2d, 657, § Torts Comment a. This an requires instruction the describing charged offense for the jury when an issue of is plaintiffs guilt raised, as well as for the purpose of the having jury assess probable cause. The only instructions relating to this point merely told the that jury plaintiff must establish "that defendant acted without probable cause in or initiating the procuring of the prosecution and plaintiff,” that "probable cause for the commence ment of criminal proceedings comprehends the exist ence of such facts and circumstances which would convicted, party being any Illinois court said: ever "Who heard of a court, respectable conduct, disorderly of the offense of under an indictment larceny?” complainant liability. for and relieved the Id. at the 553. On hand, prosecution originally other charged, for an offense more than serious that one, prove, and one more if difficult even a related is less obviously Black, responsibility original the informant. Bennett v. Cf. (Ala 1828). 1 Stew. 496 10 Respondent argue evidentiary does not that there was no sufficient innocence, concerning guilt basis for an instruction his and we do not question. consider that
[ 500 ] the that mind, honest belief cause, in a reasonable the This is too charged.” is of the crime guilty person the of the elements without explanation abstract elements, these charged. crime failure explain is The case was error. requested, when properly for remanded a new trial. and remanded.
Reversed J., concurs in the result. Bryson, TONGUE, J., concurring. specially be I the must with case majority agree I for a new trial. disagree, reversed remanded its however, with the the given by majority reasons with to the first cause of action holding, respect trial erred battery, assault the court in this instructing that "the only evidence case is that did defendant strike » ‡ outset, con- majority accepts At plaintiffs he wife that tention his and that bis was "uncon- was struck in the face defendant be testimony” says tradicted directed may decided is "whether and when the be tes- conclusive effect to the uncontradicted give The majority of a a fact in issue.” timony proponent of (i.e., a then in this case accepts controlling law "uncontradicted”) in which the testimony case P2d Ellis, rule as stated Rickard two its including emphasis (1) to contradict of evidence availability factors *11 (2) likelihood the testimony” the "uncontradicted might in the litigation the witness’s interest dis- rule is then testify falsely. him to That tempt at some length. cussed then says that: majority Whether
"The this case. pertinent same factors are Necessar- correctly question. were is a close they applied the involves setting ily application their a trial of judgment court, exercise by the trial but is not a of matter discretion.”
It then is stated by the that evidence to majority contradict plaintiffs of testimony alleged the striking "was not only readily but available to uniquely defendant,” but that he did not offer himself as a witness contradict testimony.
After thus holding that of these two application Rickard "factors” this case a "close presented and that of question” such factors application (for involves the of exercise trial "judgment” would not be "close judge reversed ordinarily case”), the majority abruptly then seems to have in then "changed ending story” reversing case in this that "the ground trial court disbelieved, strik- of the version plaintiff’s have might tension” of emotional "setting of the in view ing” between Officer were differences that "thére fact Mr. Mrs. testimony and the report Hill’s written the episode.” aspects other Rogers on In my opinion, such a disposition of this case is so ambiguous and self-contradictory as cause confu- sion among trial judges and as lawyers to the proper function of the jury, the trial judge and this court in cases in which is to be alleged "uncon- tradicted” and the manner in which the Rickardrvle is to be applied such It cases. is my also opinion this course of reasoning at majority, least as applied case, facts is patently wrong at least two reasons:
(1) In holding either a trial court court may, as a matter withdraw from the "judgment,” jury the issue of the of the of a in a this, witness case such as the rule adopted by majority contrary mandatory requirements (Amended), Art VII 3,§ Constitution Oregon 17.250, and of ORS 17.255, 41.310, 41.360 and 44.370 to a applied this, case such as in which the opposing ]
[ 502 *12 statutory presump- of a entitled to the benefit is party tion.
(2) of Rickardis not event, properly In the rule any rise give the so as to facts of case applicable or by trial court either a of "judgment” any of from court withdraw wife, his because of the and so testimony,” was not "uncontradicted a consideration either necessary proper as to make of "availability” "interest” of the "factors” of evidence. Con- Oregon mandatory requirements The
1. of involving and statutes as to cases applied stitution presumptions. (Amended), 3,§
Article VII of the Constitu- Oregon Oregon tion was of the of adopted by people vote to be the result of were then considered 1910 as what verdicts Oregon setting abuses aside judges has adopted state they disagreed. with which No other law a limitation common upon such constitutional the courts. of powers VII, only § of Art not mandatory provisions from
prohibit "re-examining” any courts Oregon affirmative- found "unless the court can by jury fact verdict,” no evidence to is but ly there say support withholding from also courts from prohibit Oregon to the which, if submitted issue fact jury any the courts because could not be "re-examined” jury, such some evidence to support of the presence commonly mandate This constitutional finding. on plaintiffs as of benefit regarded primarily nonsuit, judgment directed verdict motions case, however, as in this occasions, are n.o.v. There a to its benefit when defendants are also entitled right. matter constitutional VII, 3,§ In addition Art provisions Constitution, Oregon Oregon legislature has mandatory provi- statutes similar including enacted sions which questions reserve various expressly exclusive by Oregon determination which juries further limitations the common law impose powers Oregon courts. 17.255, these ORS
Among statutory provisions are provides Oregon which "are the exclusive juries 17.250, of all of fact” judges questions and ORS *13 provides as follows: court, jury, subject
"The to the in the control statute, specified by judges cases are the of the effect or them, of except value evidence addressed when is to are, however, thereby They declared to be conclusive. by be instructed proper court on all occasions: * * * [*]
"(2) in they conformity That are not bound to find witnesses, any with the declarations number which of of produce minds, against not in less do conviction their a number, against or a or other evidence presumption minds; their satisfying "* * * * *” added) (Emphasis In Oregon not mere presumptions procedural are of contrary devices which the offer disappear upon evidence, Instead, in as some states. reason of by 41.310, of them- express provisions presumptions ORS such, As pre- selves constitute "indirect evidence.”1 by juries are entitled to be considered sumptions of purposes evidence of for the deciding issues fact VII, § Art 3.
ORS 41.360 lists
disputable
various
presumptions
provides
they "may
by
be controverted
other
evidence,
indirect,
direct or
but
so overcome,
unless
the jury is bound to find according to the presump-
tion.” The first of
"disputable
these
presumptions”
is
"a person
is
of
innocent
crime or wrong.” This
presumption
is not
limited
cases,
to criminal
but
1 Wyckoff
P2d
(1944).See also U.S.
v. Mutual
National Bank Lloyds,
Life
Ins.
Co.,
173 Or
298, 382
598-99,
[ 504] cases, including extends civil tort the "wrong” of negligence.2 constitutional follows, reason these by express
It in the ordinary that at least and statutory provisions, this, a is entitled case, such as which party is not statutory benefit a presumption, any to find with conformity bound even by opposing party, number witnesses called follows, con- It otherwise "uncontradicted.”3 though can no court Oregon such a case versely, it to find withdraw an issue a require such from with such evidence. conformity "uncontradicted” no from this escape In there can be my opinion, (1) statute, a statu- by in Oregon, conclusion because: (2) VII, Art evidence; reason tory presumption juries § courts leave Oregon must there is decisions of all of fact questions (3) ORS support finding jury, evidence to 17.250(2) are not specifically juries provides bound "a testimony contrary "uncontradicted” or other evidence their minds.” presumption satisfying *14 Oregon That this result is by reason required constitutional and is also statutory requirements 44.370, clear which by provisions made of ORS as follows: provides
"A
This
presumed
speak
witness is
the truth.
to
however,
by the manner
presumption,
may be overcome
testified,
testimony,
in which he
his
by
character of
motives,
by
his
or
by
affecting
or
evidence
character or
contradictory
by
jury,
the trial
evidence. Where
” (Em-
credibility.
are the
his
they
judges
exclusive
added)
phasis
If it
the Oregon
be said that such a result
leaves
in
prevent
courts
cases such as this to
powerless
2
(1960).
395, 399,
also
See
P2d 432
Stage
Pierre,
224 Or
356
v.
St.
(1931).
233,
610, 618,
3
987
Semler,
137
2
P2d
P2d
Millar v.
3
393, 416, 139
also,
Co.,
P
e.g.,
Bay
71 Or
v.
See
Graham
Coos
R. & N.
(1914),
224,
969,
241-42, 161 P
Co.,
and White v. East Side Mill
84 Or
[
correct "injustice”
from
resulting
"mistakes” by juries
in
refusing
accept "uncontradicted”
testimony,
should be noted that
substantially
same contention
was made some years
with
ago
reference
question whether,
VII,
3,§
under Art
Oregon courts
have
power
prevent or correct "injustice” resulting
from "excessive” verdicts by juries for
damages
personal
injuries. That contention was
laid to
finally
rest
this court
in an opinion
Van
Justice
in
(1949).
Lusk
Schneiderman,
Lom v.
187 Or
In Rickard
Ellis,
(1962),
In the course of decision, however, its this court 51) with from Ferdinand v. Agricul quoted approval tural Co., Insurance 482, 126 NJ A2d 323 its holding cases uncontradicted involving testimony such testimony may be so clear that "disbe lief of the arise,” could not story reasonably *15 event the question is "for the court to decide and not so, In jury.” this court to a doing appeared adopt rule that in in entirely which proper jurisdictions
[ ] 506 they what of to control powers the common law courts has juries to be verdicts by consider "unreasonable” statute, as limited constitution or by not been court No was made this Oregon. reference VII, 3,§ Art to of either requirements Rickard 17.250, 17.255, 41.310, 41.360 or 44.370. ORS note, however, It to that no contention is important in that case made Rickard that the defendant was to so as entitled the benefit of any presumption, was to be evidence to considered constitute tes- whether to the uncontradicted accept deciding contrary, On the "uncontradicted timony. plaintiffs what testimony” injury opposed only by her was (at 53) from referred as possible court to inference not failure to seek aid that was her medical she in the accident. injured words,
In in which other Rickard was a case was issue of testimony” "uncontradicted issue injuries existence and extent of plaintiffs —an which defendant was not entitled to the benefit to if the the case as would have been any presumption, evidence” was that defendant "uncontradicted negligent.
Thus, Rickard
a
in which was arguable
case
the trial
court had
hold
power
be
testimony”
"uncontradicted
should be "declared
conclusive,”
the first
paragraph
as authorized
not, however,
subject
17.250. It was
a case
ORS
forth in
as set
limitation
on that
express
power
(2)
17.250,
specifically
of ORS
which
subparagraph
is not
by any
bound
provides
in iAcirminds” as
produce
not
conviction
"[does]
* * *
minds,”
presumption
satisfying
their
"against
to such
contrary
so as
constitute evidence
VII, § 3.4
of Art
require
application
and thus
Co.,
4 It is
also of interest
that in Palmer v. Van Petten Lbr.
note
(1973),
again
majority
Or
509 P2d
which the
court
Ellis,
discussed and reaffirmed
In this
because the defendant
is
an
charged with
assault and
battery
plain
upon
tiff, he
to
is entitled
the benefit of the statutory
”5
that he
presumption
"innocent of crime or wrong.
Also,
"uncontradicted,”
testimony alleged
i.e.,
be
of plaintiff and
testimony
his wife that
plaintiff
hit in
defendant,
the face by
went
the basic liability
issue of whether or not defendant had been guilty of
such an assault and
follows,
case,
It
in
battery.
by
reason
of
mandatory
VII,
3,§
Art
requirements
of
17.250, 17.255, 41.310,
ORS
44.370,
41.360 and
that
even if
testimony
such
and
wife
plaintiff
his
not directly
defendant,
contradicted
the trial court
had no
to withdraw
power
from the
the issue
such testimony because defendant
was entitled to the benefit of that statutory presump
tion and to have the jury consider that
in
presumption
case,
agency
in an automobile
what was involved was the inference
any statutory presumption.
Judson v.Bee
The same was true of
rather than
(1931).
1,
Co.,
holding
In
294 P
2. limitations the rule as stated express Rickard Ellis. limita- statutory Aside from constitutional cases, in such tions courts imposed upon Oregon in Rickard v the rule as stated assuming Ellis, case, supra, may be to this properly applicable course, within the its facts come provided, rule, from limitations of that it is nevertheless clear the record in this case that testimony” and his wife was not "uncontradicted Rickard, within the limitations of the rule as stated so as to make for the to consider proper majority "uncon- two-fold "factors” to be in cases of applied evidence,” i.e., the of evidence” "availability tradicted *18 "interest” of the and the witness. (at 51) Agricultural
Rickard Ferdinand v. quotes Co., supra, Insurance the "correct principle” stating it that cases is contended application that "prin- is "uncontradicted.” testimony According the jury a trial court withdraw from ciple,” may testimony provided of the of such credibility following require- testimony that such satisfies ments. "* * * witnesses, interested testimony [W]hen the otherwise, convincing, not is
in the event or clear knowledge and common light general incredible in the any extraordinary, not not contradicted experience, [510] way by circumstances, witnesses or plain and so complete that disbelief story of the reasonably could not arise in the process rational ordinary intelligent * * mind, added) (Emphasis testimony Thus, directly the mere fact that is not testimony contradicted ficient. other is not of itself suf- testimony accepted by majority In this case the as "uncontradicted” within the rule as stated in testimony by plaintiff Rickard consists of and his wife plaintiff plaintiff was hit Officer Hill while holding down the arms of one Curtis, Dender so as helpless, to render him at which time Officer Hill up provocation and, came without excuse, took a swdng with his fist at Curtis, Dender who then "ducked.” respect
With all majority, my due to the it is opinion testimony, standing such alone, even light general somewhat "incredible in the knowl- edge experience.” and common At least, such testimony hardly can extraordinary.” be said to be "not contrary, just
On the as it held in RickardMh&t testimony of the in properly case was of such a nature as to be submitted jury, so also was this of such a nature require as to be submitted to the because of express requirements those of the rule as stated in given by Rickard, if even such had been pro- witness, disinterested and thus without need to ceed further to a consideration of the factors of "availability testimony.” "interest” and appears upon reading It also of the entire record properly that it cannot be contended in this case that testimony by plaintiff and his wife was "not any way by contradicted in witnesses or circum- required by stances,” as also the rule as stated recognized Ferdinand, which was in Rickard to be principle” application "correct such cases. On *19 contrary, testimony by plaintiff and his wife was by plaintiff’s testimony "contradicted” both on cross- by report examination and the written of this incident by Hill, Officer which was received in evidence when by plaintiff report offered as a which included Hill’s Rogers’s "narration of what Mr. involvement inwas episode.” that the of the testified on cross-examination Plaintiff "grazed was on side in which he incident trying pull [he] occurred "at time face” Hill] "they [Curtis [Curtis] were and off” and when hitting could other with closed fists.” each any properly from this found have "grazing” plaintiff’s by fist, if Hill’s cheek plaintiff happened happened interfered all, when at attempt previous Curtis, at which to arrest with Hill’s away,” escaped and did not and "ran time Curtis reap- subsequent happen when Curtis on the occasion by "intercepted” peared, plaintiff if then even Curtis testimony by wife, his story plaintiff’s plaintiff in and itself contradicted helpless unprovoked assault officer victim. report effect,
To the stated that same Officer Hill’s physical plaintiff his "scuffle” with Dender Curtis and attempted he occurred when first to arrest Curtis after lighted slapped Curtis had his face and thrown a my cigarette it, into at which time "exited vehicle he grasped subject him the arm” and told he plaintiff arrest; under it was then that was "grabbed in the Mr. Curtis’s arm” and that left ensuing Hill’s "hold” and "scuffle” Curtis "broke” "fled.” Officer Hill’s written "narrative statement” goes say
on to that after then was unsuccessful he attempt interfering with his to arrest his Curtis, assistance; that before arrest of he radioed for help scene,” with his arrived "Curtis came back "going right stating back, hand behind his that he was Subject away was THEN taken his shoot me. brother.” The could found from properly have Officer Hill’s written narrative report, contrary there en- plaintiffs testimony, was no physical *20 Hill counter between Officer and either Dender Curtis or at that did then that not plaintiff point; plaintiff down, and Dender Curtis and hold his arms "intercept” Hill Officer did not then to strike Curtis attempt with his fists. there was evidence in the
Finally, record which directly tes- impeached plaintiff’s timony and from which the jury could have properly found that of the plaintiff’s by attempt Officer Hill to strike Curtis as he was held being helpless by plaintiff was not truthful. Both plaintiff and his wife testified under oath that at the time of Curtis, this incident did they not know Dender at least name, and attempted give the impression "gentleman” who they saw "walking up walkway” to them. stranger On cross- examination, however, admitted plaintiff that Dender Curtis was one of a group young men involved previous all, incident with the after which police, they Curtis, went including police or sheriff’s office of their complain treatment The police. jury could find from properly this admission that the other testimony by and his wife was false. denied that plaintiff wife
Similarly, plaintiffs obscenities; heard obscen- any that she any shouted "Dender except ities used toward the police, he I remember what have, but don’t Curtis might recall he did not testified that said.” Plaintiff also Dender was said when or "hear” what what was said contrary, Hill. To the Officer at shouting Curtis with Hill is replete of Officer report the narrative he when obscenities, Curtis only by not reference to car, but also Hill’s patrol first Officer approached Of- believed have properly could jury plaintiff. have found report ficer Hill’s narrative was also false. his wife testimony by plaintiff Hill under oath that Officer also testified Plaintiff "stay he would be him out of did not tell Hill and Officer the affair between arrested” or that [plaintiffs] also This is business.” Curtis was "none of incident, contrary Hill’s written narrative believed, the result have with which the could properly that this found that it could have by plaintiff was also untrue. impression reasons, well as the these
For all of jury by plaintiff upon in their and his wife made physical appearance testifying, while
and manner complete rejected properly false- as a have could attempt by story unprovoked Officer hood their being were held whose hands Hill to strike a victim down. my opinion, follows, examination It based (which majority not does record
of the entire *21 summarize), testimony by plain- that the undertake to given if disinterested wife, even tiff and his testimony” within witnesses, not "uncontradicted was adopted in in Ferdinand and limitations stated to have that defendant was entitled Rickard. It follows jury testimony credibility to the submitted of that considering necessity of the "factors” of without the the avail- and his wife and the "interest” of contrary ability of evidence. previously held noted, in RickardWAs court
As even jury question "uncon- whether was testimony true. Such a in that case was tradicted” supported by this court the decisions of result also usually held that it has been Rickard, in which after testimony by witnesses, as interested uncontradicted jury preclude its from case, does not "weighing” proper such function of traditional and credibility testimony determining such witnesses.9 (1962); 9 See, Rogers, P2d 647 e.g., Kraxberger v. 231 Or (1965); 308, 318, Yant, v. Boston Old P2d 346 Grubb
Schmitz Despite this, all of the majority considers this case to be one of "uncontradicted” to present a "close question” requiring the exercise of "judgment” by the trial judge, apparently because Officer Hill did not give oral his own behalf, but was content to rely upon his written report, which was received in evidence upon offer by plaintiff as Hill’s "narration” of the "episode.” Indeed, the majority only reverses the trial court because of the "setting emotional tension” and the "differences” in Hill’s "on report other aspects episode.” On the contrary, with all due respect it is majority, firm my opinion that this was not a "close case” calling for the exercise of either "judg- ment” "discretion,” but was a clear case in which the defendant entitled, as a matter of right, to have plaintiff’s testimony submitted to the (1) jury both because of the express limitations im- posed Oregon courts in such cases (2) constitution and statutes of Oregon and because such testimony was not "uncontradicted testimony” within the requirements of the rule as stated in Ferdinand and as adopted in Rickard.
Lent, J., joins in this concurring opinion.
HOWELL,
J.,
dissenting
part.
I
with
agree
the majority opinion that
the trial
court should not have instructed
that "the
only evidence in this case is that
the defendant did
strike the plaintiff,” because that was a
fact
However,
for the
to decide.
no
exception
*22
taken
It
defendant.
is axiomatic that without an
exception
giving of the instruction would not
constitute reversible
error.
Ins.,
Colony
208, 212-13,
(1970);
257 Or
Motors, Inc.,
449, 452, 486
(1971);
Meyer,
259 Or
P2d 1274
Coleman v.
129, 136,
(1972);
Miller,
Chopp
138, 143,
[515] con- lawyers frequently teaches Experience do not continue to pursue which they tend for positions them. If a lawyer expects rules against when the court exception to take an obligation to be relieved of his the time of any is usual at instructions given, to ask of law involved discussion of point previous at the necessary will be exception the court whether an already in view of the lawyer’s time instructions If allow an automatic we subject. stated on position law to point instruction every exception during contrary position has taken a which counsel addition, has In this court trial, will result. only chaos judi- rule as one of efficient enforced this previously to whether respect oppos- without cial administration of failure the issue on appeal counsel has raised ing to the instruction. except I then would
If a proper exception, there had been majority. reached concur the result dissent. Holman, J., in this joins