179 P. 279 | Or. | 1919
The court made no findings of fact except the “findings of fact” already quoted. The defendant contends that the “findings of fact” made by the court are not sufficient within the rule applied in Drainage Dist. No. 4 v. Crow, 20 Or. 535 (26 Pac. 845). The plaintiff argues that, when properly construed, the opinion in Drainage Dist. No. 4 v. Crow, 20 Or. 535 (26 Pac. 845), does not announce that an omnibus finding that the allegations contained in a complaint are true or not true, as the case may be, is insufficient to sustain a judgment. The only question presented by this appeal is whether the judgment is legally sustained by the quoted “findings of fact.” The question for decision cannot be adequately considered unless we first examine our statutes and then view them in the light of their history.
“The verdict of a jury is either general or special. A general verdict is that by which the jury pronounce generally upon all or any of the issues, either in favor of the plaintiff or defendant. A special verdict is that by which the jury find the facts only, leaving the judgment to the court.”
“the decision shall state the facts found, and the conclusions of law separately, without argument or reason therefor. Such decision shall be entered in the journal, and judgment entered thereon accordingly. The court may deliver any argument or reason in support of such decision, either orally, or in writing, separate from the decision, and file the same with the clerk.”
In passing it may be noted that Section 154, L. 0. L., provides that the court may in all cases instruct the jury, “if they render a general verdict, to find upon particular questions of fact”; but this provision for findings “upon particular questions of fact” must not be confused with the provision for special verdicts found in Section 152, L. 0. L. The words “general” and “special” of themselves suggest at once the inherent difference between a general and special verdict. One pronounces generally upon the issues, either for the plaintiff or for the defendant; the other finds the facts only, leaving the judgment to the court.
“the statute making it incumbent upon the court to state the facts found, the consent of a party to submit his cause for trial without the intervention of a jury must be construed as a request for a special verdict, which necessitates a finding upon all the material issues involved in the action.”
The ruling made in Moody v. Richards is in harmony with the generally accepted doctrine that the findings made by the judge, when deciding an action wherein the
Originally a false general verdict rendered the jury liable to he attainted. Belief from the harsh consequences of a false general verdict was afforded by the introduction of special verdicts. The statute of Westm. 2,13 Edw. I, C. 30, Section 2, expressly provided that
“the justices of assize shall not compel the jurors to say precisely whether it he a disseisin or not, so as they state the truth of the fact, and pray the aid of the justices; but if they will say of their own accord that it is disseisin, their verdict shall be admitted at their own peril.”
But there is authority for the statement that this statute was only a legislative affirmance of the common law: 2 Thompson on Trials (2 ed.), § 2649; Clement-son on Special Verdicts, 1. Begardless of whether special verdicts find their origin in the statute of Westm. 2 or at a still earlier period the practice of permitting special verdicts was recognized and the rules defining the requisites of such verdicts were thorougly established. When speaking of the New York Code which defined a special verdict in language identical
“There is nothing in the Code of Procedure to warrant the idea that the requisites of a special verdict are other or different now than they were before the Code was enacted.”
We may assume therefore that our Code neither requires more nor will be satisfied with less than was requisite before its enactment.
The courts of the different jurisdictions are agreed upon the functions to be performed by a special verdict; but the precedents are not entirely harmonious when deciding whether given language found in a special verdict operates as a complete performance of those functions. In two states, notably California and Minnesota, it has been repeatedly held that an omnibus finding to the effect that all the allegations of a complaint are true is sufficient, even though such finding stands alone and is unaided by any other statement of fact: McEwen v. Johnson, 7 Cal. 258; Johnson v. Klein, 70 Cal. 186 (11 Pac. 606); Williams v. Hall, 79 Cal. 606 (21 Pac. 965); Moody v. Tschabold, 52 Minn. 51 (53 N. W. 1023); Scott County School Dist. No. 73 v. Wrabeck, 31 Minn. 77 (16 N. W. 493); Norton v. Wilkes, 93 Minn. 411 (101 N. W. 619). But it is interesting to note that in both those jurisdictions the courts have on more than one occasion said that the practice of employing only a blanket finding is not to be commended: Davis v. Drew, 58 Cal. 152, 157; Heintz v. Cooper, 104 Cal. 668 (47 Pac. 360); Greve v. Echo Oil Co., 8 Cal. App. 278, 283 (96 Pac. 904); Brown v. Roberts, 90 Minn. 314, 317 (96 N. W. 793). Following the lead of McEwan v. Johnson, 7 Cal. 258, this court in McFadden v. Friendly, 9 Or. 222, 224, decided that an omnibus finding was alone sufficient to support a verdict. It is quite clear, from a reading of the opinion in
“that the court should find, and state the facts constituting the primary right of action or defense, the corresponding duty and breach thereof, and the injury resulting therefrom, and, as a conclusion deducible from the facts so found, the law applicable thereto.”
Reversed and Remanded.